author: Ellington, Presiding Judge.

text:
    A16A0655.
    McCONNELL et al. V. DEPARTMENT OF LABOR.
    (787 SE2d 794)
   Ellington, Presiding Judge.

Thomas McConnell filed this class action against the Georgia Department of Labor, alleging several tort claims in connection with the Department’s disclosure of personal information of McConnell and the proposed class members. After a hearing, the Superior Court of Cobb County granted the Department’s motion to dismiss McConnell’s complaint for failure to state a claim upon which relief can be granted. McConnell appeals, and for the reasons explained below, we affirm.

In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff. As an appellate court, we review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor.

(Citations, punctuation and footnote omitted.) Wright v. Waterberg Big Game Hunting Lodge Otjahewita (PTY), 330 Ga. App. 508, 509 (767 SE2d 513) (2014).

McConnell’s amended complaint contained the following material allegations. In September 2012, the Department created a spreadsheet that listed the name, Social Security number, home phone number, e-mail address, and age of over 4,000 Georgians who had applied for unemployment benefits or other services administered by the Department. McConnell was among the Georgians whose personal information was included in the spreadsheet. A year later, a Department employee sent the spreadsheet by e-mail to approximately 1,000 of the Georgians on the list. To protect himself from the resulting risk of identity theft, McConnell enrolled in the “Life Lock” service, which currently costs $19 per month.

In January 2014, McConnell filed this class action, alleging claims, as amended, for negligence in disclosing “personal information” as defined under Georgia law, invasion of privacy (public disclosure of private facts), and breach of fiduciary duty. Under each theory of recovery, McConnell seeks damages, specifically, the fee for membership in Life Lock and other out-of-pocket costs related to credit monitoring and identity protection services, damages resulting from the impact to his credit score from the closing of accounts, and compensation for the continuing fear and anxiety of potential identity theft in the future. He does not allege that an act of identity theft has yet occurred.

The Department moved to dismiss McConnell’s complaint, arguing, inter alia, pursuant to OCGA § 9-11-12 (b) (6), that the complaint failed to state a claim upon which relief can be granted. The trial court granted the Department’s motion to dismiss, finding that each count failed to state a claim upon which relief can be granted.

1. McConnell contends that the trial court erred in ruling that he failed to state a claim for negligent disclosure of personal information, based, inter alia, on its determination that as a matter of law “there is no legal duty [under Georgia law] to safeguard personal information.”

In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty The legal duty is the obligation to conform to a standard of conduct under the law for the protection of others against unreasonable risks of harm. This legal obligation to the complaining party must be found, the observance of which would have averted or avoided the injury or damage; the innocence of the plaintiff is immaterial to the existence of the legal duty on the part of the defendant in that the plaintiff will not be entitled to recover unless the defendant did something that it should not have done, i.e., an action, or failed to do something that it should have done, i.e., an omission, pursuant to the duty owed the plaintiff under the law. The duty can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the caselaw. . . . The existence of a legal duty is a question of law for the court.

(Citations and punctuation omitted.) Rasnick v. Krishna Hospital, Inc., 289 Ga. 565, 566-567 (713 SE2d 835) (2011).

McConnell acknowledges that a duty to safeguard and protect the personal information of another has not been expressly recognized in Georgia case law. McConnell contends that such a common law duty exists nonetheless, citing two statutory sources, OCGA §§ 10-1-393.8 and 10-1-910. In OCGA § 10-1-910, the GeneralAssembly set out legislative findings underlying the Georgia Personal Identity Protection Act, OCGA §§ 10-1-910 through 10-1-915 (the “GPIPA”), enacted in 2005. In the GPIPA, the GeneralAssembly found, inter alia, that “[t]he privacy and financial security of individuals is increasingly at risk, due to the ever more widespread collection of personal information by both the private and public sectors[,]” that “[i] dentity theft is one of the fastest growing crimes committed in this state[,]” and that “[i]dentity theft is costly to the marketplace and to consumers[.]” OCGA § 10-1-910 (1), (3), (6). Because “[v]ictims of identity theft must act quickly to minimize the damage [,] . . . expeditious notification of unauthorized acquisition and possible misuse of a person’s personal information is imperative.” OCGA § 10-1-910 (7). In line with these findings, the GPIPA requires that affected persons be given certain notice of a data breach. McConnell contends that in codifying these findings the General Assembly demonstrated its intent to protect citizens from the adverse effects of disclosure of personal information and created a general duty to preserve and protect personal information. Notably, however, the GPIPA proscribes particular conduct only after a (known or suspected) data security breach has occurred. Because the GPIPA does not impose any standard of conduct in implementing and maintaining data security practices, it cannot serve as the source of a statutory duty to safeguard personal information. Wells Fargo Bank v. Jenkins, 293 Ga. 162, 165 (744 SE2d 686) (2013).

Similarly, we conclude that OCGA § 10-1-393.8, which is part of the Fair Business Practices Act of 1975 (the “FBPA”) as amended, cannot serve as the source of such a statutory duty. That Code section provides that, except as otherwise provided, “a person, firm, or corporation shall not: . . . [p]ublicly post or publicly display in any manner an individual’s social security number. ... ‘[P]ublicly post’ or ‘publicly display’ means to intentionally communicate or otherwise make available to the general public[.]” OCGA § 10-1-393.8. As the trial court noted in the appealed order, the FBPA expressly prohibits intentionally communicating a person’s Social Security number, while McConnell alleges that the Department negligently disseminated his Social Security number by failing “to take the necessary precautions required to safeguard and protect the personal information from unauthorized disclosure.” Although the FBPA imposes a standard of conduct to refrain from intentionally and publicly posting or displaying Social Security numbers, a legal duty to refrain from doing something intentionally is not equivalent to a duty to exercise a degree of care to avoid doing something unintentionally, which falls within the ambit of negligence. The trial court correctly concluded that McConnell’s complaint is premised on a duty of care to safeguard personal information that has no source in Georgia statutory law or case law and that his complaint therefore failed to state a claim of negligence. Diamond v. Dept. of Transp., 326 Ga. App. 189, 195-196 (2) (756 SE2d 277) (2014).

Given the General Assembly’s stated concern about the cost of identity theft to the marketplace and to consumers, as well as the fact that it created certain limited duties with regard to personal information (e.g., the duty to notify affected persons of data breaches and the duty not to intentionally communicate information such as Social Security numbers to the general public), it may seem surprising that our legislature has so far not acted to establish a standard of conduct intended to protect the security of personal information, as some other jurisdictions have done in connection with data protection and data breach notification laws. It is beyond the scope of judicial authority, however, to move from aspirational statements of legislative policy to an affirmative legislative enactment sufficient to create a legal duty.

2. McConnell contends that the trial court erred in dismissing his breach of fiduciary duty claim for failure to state a claim upon which relief can be granted based on its determination that he had not shown that he had a particular relationship of trust or mutual confidence with the Department. “Establishing a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” (Citation and punctuation omitted.) Wells Fargo Bank v. Cook, 332 Ga. App. 834, 842 (1) (b) (775 SE2d 199) (2015).

Any relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, 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.

McConnell argues that, because a fiduciary relationship, in addition to being created by statute or contract, may also be created by the facts of a particular case, a claim for breach of fiduciary duty is uniquely unsuitable for disposition via a motion to dismiss, when the plaintiff has not been able to conduct discovery. In his complaint, McConnell alleged that a fiduciary duty arose when the Department required him to disclose confidential personal identification information in order to obtain services or benefits from the Department and that he reasonably placed his trust and confidence in the Department to safeguard and protect his information from public disclosure. He contends that the Department was “so situated as to exercise a controlling influence over . . . [his] interest” because, unless he provided his personal information to the Department, he would not receive unemployment benefits, resulting in a fiduciary relationship.

In a recent case, a bank employee gave a customer’s information to the employee’s husband, which allowed her husband to steal the customer’s identity. Jenkins v. Wachovia Bank, 314 Ga. App. 257 (724 SE2d 1) (2012), reversed in part on other grounds sub nom. Wells Fargo Bank v. Jenkins, 293 Ga. 162 (744 SE2d 686) (2013), and opinion vacated in part, 325 Ga. App. 376 (752 SE2d 633) (2013). The customer sued the bank, asserting claims that the bank negligently failed to protect his personal information, breached a duty of confidentiality, and invaded his privacy. 314 Ga. App. at 257. The customer alleged that the bank “falsely represented to its customers and members of the general public that it created and implemented a system to adequately protect the private and personal identifying information entrusted to it by its customers[.]” Id. Noting that the bank-customer relationship generally is not a confidential relationship under Georgia law, this Court held that the plaintiff had not pled “any special circumstances showing that he had a particular relationship of trust or mutual confidence with [the bank].” Id. at 262 (2). In other words, the fact that the plaintiff gave the bank his personal information to receive services, and the bank promised to protect this information, did not create a confidential relationship under Georgia law. Likewise, in alleging in this case that he gave the Department his personal information as a prerequisite to receiving services, with the expectation that the Department would protect his information, McConnell failed to assert in his complaint facts showing that the Department owed him a confidential duty to protect that information. Id. at 261-262 (2).

3. McConnell contends that the trial court erred in ruling that he failed to state a claim upon which relief can be granted for invasion of privacy, public disclosure of private facts, based, inter alia, on its determination that the elements of that tort cannot be satisfied unless the facts at issue are embarrassing private facts. McConnell argues:

Georgia law recognizes a variety of information as private and not subject to public disclosure, including certain financial and banking records, medical records, certain police records (particularly records of juvenile crime) and records related to status as a victim of a crime (particularly sexual assault). The law recognizes a claim for unauthorized disclosure of private information in these circumstances.

Under Georgia law,

there are four disparate torts under the common name of invasion of privacy. These four torts maybe described briefly as: (1) intrusion upon the plaintiff’s seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.

(Citation and punctuation omitted.) Bullard v. MRA Holding, 292 Ga. 748, 751-752 (2) (740 SE2d 622) (2013). There are at least three necessary elements for recovery for

[p]ublie disclosure of embarrassing private facts about the plaintiff[,] . . . : (a) the disclosure of private facts must be a public disclosure; (b) the facts disclosed to the public must be private, secluded or secret facts and not public ones; (c) the matter made public must be offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.

Cabaniss v. Hipsley, 114 Ga. App. 367, 372 (2) (151 SE2d 496) (1966). See also Thomason v. Times-Journal, 190 Ga. App. 601, 604 (4) (379 SE2d 551) (1989) (accord).

In Cumberland Contractors v. State Bank & Trust Co., the plaintiffs claimed that the defendant bank’s publication of their Social Security numbers could result in identify theft, credit card fraud, and other offenses that might damage them personally and financially We held that such allegations

do not fall within the causes of action for invasion of privacy because there is no allegation that [the defendant] (1) intruded into the [plaintiffs’] seclusion, (2) disclosed embarrassing private facts, (3) depicted the [plaintiffs] in a false light, or (4) appropriated the [plaintiffs’] name or likeness for [the defendant’s] own advantage.

Cumberland Contractors v. State Bank & Trust Co., 327 Ga.App. 121, 126 (2) (a) (755 SE2d 511) (2014). As a result, we held, the trial court properly dismissed the plaintiffs’ claim for invasion of privacy for failure to state a claim for relief under Georgia law. Id. The trial court in this case properly dismissed McConnell’s invasion of privacy claim for the same reason. Id.; Jenkins v. Wachovia Bank, 314 Ga. App. at 262-263 (3); Cabaniss v. Hipsley, 114 Ga. App. at 372 (2).

Decided June 16, 2016

Cohen, Cooper, Estep & Allen, Scott A. Schweber, Jefferson M. Allen, for appellants.

Samuel S. Olens, Attorney General, Kirsten S. Daughdril, Senior Assistant Attorney General, A. Ellen Cusimano, Assistant Attorney General, for appellee.

Judgment affirmed.

Branch and Mercier, JJ., concur.

       We note that these factual allegations are not disputed. The Department admitted creating the spreadsheet and admitted that the spreadsheet included McConnell’s name, Social Security number, home phone number, age, and e-mail address. It admitted that its employee, in attempting to send the spreadsheet to another Department employee, inadvertently sent the spreadsheet via e-mail to approximately 1,000 recipients. In addition, the Department admitted that the information was “personal information” under Georgia law. See Division 1, infra.

       As to McConnell’s claim for negligence, the trial court also determined that Georgia’s Tort Claims Act, OCGA § 50-21-20 et seq., does not waive the State’s sovereign immunity for the types of “loss” McConnell claims.

       See OCGA § 51-1-6 (“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”); OCGA § 51-1-8 (“Private duties may arise from statute or from relations created by contract, express or implied. The violation of a private duty, accompanied by damage, shall give a right of action.”); see also Wells Fargo Bank v. Jenkins, 293 Ga. 162, 164 (744 SE2d 686) (2013) (A legal duty that will support an actionable claim of negligence “cannot rest solely upon OCGA § 51-1-6 because this statute sets forth merely general principles of tort law. By its express terms, tort liability under OCGA § 51-1-6 mandates that the alleged tortfeasor[ ] ha[s] breached a legal duty to perform a beneficial act or to refrain from doing an injurious act. So, the legal duty to support [a plaintiff’s] negligence claim must be found in another legislative enactment” beside OCGA § 51-1-6.) (citation omitted); City of Douglasville v. Queen, 270 Ga. 770, 771 (1) (514 SE2d 195) (1999) (The first element of a cause of action for negligence is “[a] legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm [.] ”) (citation and punctuation omitted); Diamond v. Dept. of Transp., 326 Ga. App. 189, 195 (2) (756 SE2d 277) (2014) (“[D]uty arises either from statute or from a common law principle recognized in the case law.”) (citation omitted); Pulte Home v. Simerly, 322 Ga. App. 699, 705 (3) (746 SE2d 173) (2013) (“It is well-settled that Georgia law allows the adoption of a statute or regulation as a standard of conduct so that its violation becomes negligence per se. OCGA § 51-1-6 authorizes a plaintiff to recover damages for the breach of a legal duty even when that duty arises from a statute that does not provide a private cause of action. OCGA § 51-1-6 does not create a legal duty but defines a tort and authorizes damages when a legal duty is breached.”) (citation and punctuation omitted); Rockefeller v. Kaiser Foundation Health Plan of Georgia, 251 Ga. App. 699, 702-703 (1) (554 SE2d 623) (2001) (To determine whether the violation of a statute is negligence per se “it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.”) (citations, punctuation and footnote omitted).

       In his appellate brief, McConnell avers that
      data privacy and tort law related to disclosure of personal identifying information (“PH") js a new an(i emerging area of law. It is rare to find a prior court opinion “on all fours” with the facts of any given information disclosure case. However, when one views the facts of this case in light of general common-law principles of tort law, it is not difficult to see how and why the law does and should recognize tort causes of action where a defendant discloses PII without proper authorization or permission of the persons whose PII is disclosed.
      We note that a federal district court recently stated:
      Georgia recognizes a general duty to all the world not to subject them to an unreasonable risk of harm_The Court declines the Defendant’s invitation to hold that it had no legal duty to safeguard information even though it had warnings that its data security was inadequate and failed to heed them. To hold that no such duty existed would allow retailers to use outdated security measures and turn a blind eye to the ever-increasing risk of cyber attacks, leaving consumers with no recourse to recover damages even though the retailer was in a superior position to safeguard the public from such a risk.. . . Because this Court finds that a duty does exist, the [Defendant’s] motion to dismiss [the Plaintiffs’ negligence claim] on the ground that there was no duty should also be denied.
      (Punctuation omitted.) In re: The Home Depot, Inc., Customer Data Security Breach Litigation, 2016 WL 2897520, Case No. 1:14-MD-2583-TWT (N.D. Ga., decided May 18, 2016), citing Bradley Center v. Wessner, 250 Ga. 199 (296 SE2d 693) (1982). In Bradley Center v. Wessner, the Supreme Court of Georgia found a legal duty “arising] out of the general duty one owes to all the world not to subject them to an unreasonable risk of harm. This has been expressed as follows: negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Restatement, Torts, 2d, § 282.” (Punctuation omitted.) 250 Ga. at 201. Despite the expansive language regarding a general duty owed “to all the world” however, the issue presented in Bradley Center v. Wessner was quite narrow: “whether an individual other than the patient can recover for the alleged malpractice of the physician where that person is injured by the criminal conduct of the patient and there is no privity between the injured party and the physician.” 250 Ga. at 200. Noting that, “as a general rule, there is no duty to control the conduct of third persons to prevent them from causing physical harm to others [,] the Supreme Court held that one of the exceptions to that rule applied “because of the special relationship which existed between” the patient, who killed his wife and her paramour while on a weekend pass from a psychiatric hospital, and the physician, in a situation “where the course of treatment of a mental patient involve[d] an exercise of control over him by a physician who knows or should know that the patient is likely to cause bodily harm to others.” (Citations and punctuation omitted.) Id. at 201. See also City of Rome v. Jordan, 263 Ga. 26, 28-29 (1) (426 SE2d 861) (1993) (citing Bradley Center v. Wessner in analyzing whether there can be liability based on a municipality’s duty to protect the general public from criminal conduct and holdingthat “where there.is a special relationship between the individual and the municipality which sets the individual apart from the general public and engenders a special duty owed to that individual, the municipality may be subject to liability for the nonfeasance of its police department”) (footnote omitted; emphasis in original); City of Douglas v. Hudson, 315 Ga. App. 20, 22-23 (726 SE2d 496) (2012) (accord). There is no evidence of any such special relationship in this case. As for the recent federal case, In re: The Home Depot, Inc., Customer Data Security Breach Litigation, we are not bound to follow the district court’s interpretation of Georgia law. Moreover, the district court found a duty to protect the personal information of the defendant’s customers in the context of allegations that the defendant failed to implement reasonable security measures to combat a substantial data security risk of which it had received multiple warnings dating back several years and even took affirmative steps to stop its employees from fixing known security deficiencies. There are no such allegations in this case.

       See Ga. L. 2007, p. 450 (Act 241), § 1 (for name designation).

       The GPIPA requires a government entity (as a “data collector”) “that maintains computerized data that includes personal information of individuals” to give prompt notice to affected Georgia residents of any security breach, that is, acquisition of unencrypted personal information by any unauthorized person, and to notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on consumers on a nationwide basis of the timing, distribution, and content of the notices. OCGA § 10-1-912. See OCGA § 10-1-911 (1) (definition of a “breach of the security of the system”), (2) (definition of a “data collector”), (4) (definition of “notice”). The GPIPA’s definition of “personal information” includes an individual’s first andlast name incombination with the person’s Social Security number. OCGA § 10-1-911 (6). Another example is a person’s name in combination with a credit or debit card number, if under the circumstances the number could be used without a password or other information. Id.

       In Wells Fargo Bank v. Jenkins, a bank customer based a claim of negligence on the bank’s failure to protect his personal information and asserted that the legal duty to support his negligence claim was found in the federal Gramm-Leach-Bliley Act, the “GLBA,” 15 USC § 6801 et seq. The Supreme Court of Georgia explained that, although the GLBA “expressly authorizes federal agencies ... to establish appropriate standards” for financial institutions “relating to administrative, technical, and physical safeguards,” including safeguards “to protect against unauthorized access to or use of [customers’] records or information which could result in substantial harm or inconvenience to any customer,” see 15 USC § 6801 (a), such “an aspirational statement of Congressional policy” should not be “misread... as establishing a legal duty, the alleged breach of which would give rise under the law of this State to a cause of action for negligence against financial institutions.” 293 Ga. at 164-165.

       OCGA § 10-1-390 (OCGA §§ 10-1-390 through 10-1-408 shall be known as the “Fair Business Practices Act of 1975.”).

       The trial court questioned whether the Department is “a person, firm, or corporation” subject to OCGA § 10-1-393.8. But the Department does not contend that it is not subject to the statute. See OCGA §§ 10-1-392 (24) (For purposes of the FBPA, including OCGA § 10-1-393.8, “ ‘[pjerson means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity.”); 34-2-1 (“There is created and established a separate and independent administrative agency to be known as the Department of Labor.”); Foskey v. Vidalia City School, 258 Ga. App. 298, 301 (b) (574 SE2d 367) (2002) (“When a governmental entity or quasi-public entity has independent legal status as a public corporation, agency, or authority, the legislative act creating such governmental entity generally confers one or more of the power and authority to contract, hold property, eminent domain, or sue and be sued. The fact that a governmental entity may have sovereign immunity from a tort action does not prevent such entity from being a separate legal entity or an entity that may sue and be sued.”) (citations omitted).

       See, e.g., Ark. Code Ann. § 4-110-104 (b) (In the Arkansas Personal Information Protection Act: “A person or business that acquires, owns, or licenses personal information about an Arkansas resident shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect the personal information from unauthorized access, destruction, use, modification, or disclosure.”); Cal. Civ. Code § 1798.81.5 (In the California Database Breach Act: “It is the intent of the Legislature to ensure that personal information about California residents is protected.... Abusiness that owns, licenses, or maintains personal information about a California resident shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure.”); Fla. Stat. Ann. § 501.171 (2) (“Each covered entity, governmental entity, or third-party agent shall take reasonable measures to protect and secure data in electronic form containing personal information.”); Md. Code Ann., Commercial Law § 14-3503 (In the Maryland Personal Information Protection Act: “To protect personal information from unauthorized access, use, modification, or disclosure, a business that owns or licenses personal information of an individual residing in the State shall implement and maintain reasonable security procedures and practices that are appropriate to the nature of the personal information owned or licensed and the nature and size of the business and its operations.”); Md. Code Ann., State Government § 10-1304 (“To protect personal information from unauthorized access, use, modification, or disclosure, a [state government] unit that collects personal information of an individual shall implement and maintain reasonable security procedures and practices that are appropriate to the nature of the personal information collected and the nature of the unit and its operations.”); Nev. Rev. Stat. Ann. § 603A.210 (1) (“A data collector that maintains records which contain personal information of a resident of this State shall implement and maintain reasonable security measures to protect those records from unauthorized access, acquisition, destruction, use, modification or disclosure.”); Rhode Island Gen. Laws Ann. § 11-49.3-2 (a) (In the Rhode Island Identity Theft Protection Act of 2015: “A municipal agency, state agency or person that stores, collects, processes, maintains, acquires, uses, owns or licenses personal information about a Rhode Island resident shall implement and maintain a risk-based information security program that contains reasonable security procedures and practices appropriate to the size and scope of the organization; the nature of the information; and the purpose for which the information was collected in order to protect the personal information from unauthorized access, use, modification, destruction, or disclosure and to preserve the confidentiality, integrity, and availability of such information.”).

       See Wells Fargo Bank v. Jenkins, 293 Ga. at 165 (The judiciary must not misread “an aspirational statement of legislative policy” as an affirmative legislative enactment that establishes a legal duty, as that would usurp legislative authority.); Blotner v. Doreika, 285 Ga. 481, 481-482 (1) (678 SE2d 80) (2009) (Where a particular common law duty was not recognized in Georgia, the common law rule could be changed only by legislative act.); Perdue v. Baker, 277 Ga. 1, 14 (586 SE2d 606) (2003) (“The core legislative function is the establishment of public policy through the enactment of laws.”) (footnote omitted); Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963) (Our appellate courts’ authority extends only to the correction of errors of law, and we have no legislative powers or functions. “[T]he legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are bound to follow such laws if constitutional.”).

       See Wright v. Apartment Investment & Mgmt. Co., 315 Ga. App. 587, 592 (2) (a) (726 SE2d 779) (2012) (“[SJince a confidential relationship may be found whenever one party is justified in reposing confidence in another, the existence of a confidential or fiduciary relationship is generally a factual matter for the jury to resolve.”).

        See Jenkins v. Wachovia Bank, 325 Ga.App. 376, 377 (752 SE2d 633) (2013) (Because the Supreme Court in Wells Fargo Bank v. Jenkins, 293 Ga. 162, did not address or consider Division 2 of our earlier opinion in Jenkins v. Wachovia Bank, 314 Ga. App. 257 (724 SE2d 1) (2012), and because that portion of our earlier opinion was consistent with the Supreme Court’s opinion, that division remains binding.).

       Cf. Daly v. Metropolitan Life Ins. Co., 4 Misc. 3d 887, 892 (782 NYS2d 530, 535) (N.Y. Sup. Ct. 2004) (When the plaintiff wished to purchase a life insurance policy from the defendant, she was required to, and agreed to supply the company with highly sensitive personal information including her full name, her Social Security number, and her date of birth. The trial court concluded that, under New York law, there was in this agreement an implied covenant of trust and confidence that the defendant would safeguard and protect the plaintiff’s personal information, as evidenced by the defendant’s privacy notice to its customers stating that they took great care in safeguarding customers’ personal information. The court noted, “[w]hile this concept has never before been applied to issues surrounding the protection of confidential personal information, perhaps in the absence of appropriate legislative action, it should.”).

        See Jenkins v. Wachovia Bank, 325 Ga.App. at 377 (Because the Supreme Court in Wells Fargo Bank v. Jenkins, 293 Ga. 162, did not address or consider Division 3 of our earlier opinion in Jenkins v. Wachovia Bank, 314 Ga.App. 257, and because that portion of our earlier opinion was consistent with the Supreme Court’s opinion, that division remains binding.).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A16A0056.
    STONE MOUNTAIN MEMORIAL ASSOCIATION v. AMESTOY.
    (788 SE2d 110)
   Dillard, Judge.

Stone Mountain Memorial Association (“SMMA”) appeals from the trial court’s denial of its motion for summary judgment in a premises-liability and wrongful-death action brought by Nancy Amestoy following her husband Martin’s tragic death in a bicycling accident at Stone Mountain Park. Specifically, SMMA contends that the trial court erred in denying its motion for summary judgment because it is immune from liability under the Recreational Property Act (“RPA”). Because we agree with SMMA that the RPA immunizes it from liability, we reverse.

Viewed in the light most favorable to Nancy Amestoy (i.e., the nonmoving party), the record reflects that between 7:30 and 7:45 a.m. on the day in question, officers with SMMA’s public-safety department engaged in temporary traffic-control efforts on portions of Stone Mountain Park’s Robert E. Lee Boulevard in anticipation of a 5k walk/run event that was scheduled to begin at 8:00 a.m. These temporary traffic-control efforts consisted of two saw-horse style barricades placed side-by-side across the road’s southbound lanes, spanning approximately ten-feet wide with an approximately one- and-a-half foot gap between them. Both barricades bore orange and white stripes and “do not enter” signs.

The SMMA major stationed at these barricades manned the post for a few minutes after they were erected, but he left suddenly when overcome by an urgent need to use the restroom. While the major was in the restroom, the SMMA captain—who was stationed at a separate traffic-control post—saw two bicyclists maneuver around the barricades at the major’s post. Then, six or seven minutes later, Martin Amestoy was observed riding his bicycle toward the barricades at what a witness believed was a “safe, normal speed”; however, Amestoy’s head was down. Amestoy then traveled between the barricades, striking the inside corner of the lefthand barricade with his handlebar, and was thrown forward off of his bike. Although he was wearing a helmet, Amestoy suffered severe head trauma and died later that day

Thereafter, Nancy Amestoy filed suit against SMMA in her capacity as surviving spouse and on behalf of Martin’s estate. In doing so, she asserted that SMMA (1) was liable for Martin’s death due to its failure to warn of the allegedly dangerous condition of the barricades, (2) had actual knowledge that the barricades posed a risk of serious bodily injury or death, and (3) willfully failed to warn of the alleged danger (despite knowing of the risk posed by the barricades). SMMA responded and filed a motion for summary judgment, contending that it was immune from suit under the RPA. The trial court ultimately denied SMMA’s motion when it concluded that genuine issues of material fact remained as to whether (1) the barricades were a dangerous condition and (2) SMMA had actual knowledge that this condition was dangerous. The trial court did, however, certify the denial of SMMA’s motion for immediate review, and this Court granted SMMA’s application for interlocutory appeal. This appeal follows.

At the outset, we note that on appeal from the denial of a motion for summary judgment, we conduct a de novo review of the record. 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 undisputed facts, viewed in the light most favorable to the nonmovant, entitle the moving party to judgment as a matter of law. A defendant may do this by showing the trial court that the record reveals no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. Indeed, if there is no evidence sufficient to create a genuine issue of material fact as to “any essential element of the plaintiff’s claim, that claim tumbles like a house of cards.” With these guiding principles in mind, we turn now to SMMA’s arguments on appeal.

SMMA argues that the trial court erred in denying its motion for summary judgment based upon immunity under the RPAbecause (1) there was no evidence that it had actual knowledge of a dangerous condition, (2) the allegedly dangerous condition was open and obvious as a matter of law, and (3) there was no evidence that it willfully failed to warn of the allegedly dangerous condition. Because the allegedly dangerous condition—i.e., the barricades blocking the southbound lanes of Robert E. Lee Boulevard—was open and obvious as a matter of law, SMMA was entitled to summary judgment.

In enacting the RPA, the General Assembly sought to “encourage property owners to make their property available to the public for recreational purposes by limiting the owners’ liability.” In this regard, OCGA § 51-3-22 provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

Notwithstanding the RPA’s general provision for immunity from liability, there is an exception “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” But as we have previously held, “willful failure” involves “a conscious, knowing, voluntary, intentional failure, rather than a mere inadvertent, accidental, involuntary, inattentive, inert, or passive omission.” And malice requires either “an actual intent to cause the particular harm produced or the wanton and [willful] doing of the act with an awareness of the plain and strong likelihood that harm may result.” Thus, in order for the “willful or malicious failure” exception to apply, Nancy Amestoy must show that the property owner (SMMA) had actual knowledge that (1) the property was being used for recreational purposes; (2) a condition existed involving unreasonable risk of death or serious bodily harm; (3) the condition was not apparent to those using the property; and (4) having the foregoing knowledge, the property owner chose not to warn users in disregard of the possible consequences. Constructive knowledge is insufficient to meet this burden of proof, and the property owner has no duty to inspect the property. Importantly, the plaintiff must satisfy each prong of this four-part test to succeed against a recreational property owner under this exception.

At the outset, we reject any suggestion that the four-part test does not require actual knowledge as to each prong. Although we have not always been precise in our recitation of the analytical framework, the notion that actual knowledge is not required by the foregoing four-part test is belied by the plain language of the test adopted by this Court in McGruder v. Georgia Power Co., by our explanation and application of the test in subsequent cases, and even by other jurisdictions that have construed the test employed in Georgia. And here, Nancy Amestoy failed to produce any evidence to create a jury question as to the third prong of the test—that is, that SMMA had actual knowledge that the barricades were not apparent to those using the property. As the trial court noted in its order, the road leading up to the barricades is straight and open. Indeed, witnesses observed two other cyclists negotiate their bicycles around the barricades only minutes before Martin Amestoy’s accident. Additionally, not only does the photographic evidence demonstrate that the barricades were highly visible, but testimony by numerous SMMA public-safety personnel established that they believed this to be the case.

The testimony from SMMA personnel included that of a corporal who assisted in the investigation after the accident, and who testified that (1) the “barricades were plainly visible for quite a distance,” (2) the barricades were visible “for hundreds of feet,” (3) the sun was shining on the morning in question, and (4) there was “a great deal of visibility.” Likewise, an SMMA officer who performed an accident investigation, including taking various measurements to construct a to-scale diagram and conducting a “conspicuity test,” estimated that the barricades would have been visible from “a couple hundred yards” up Robert E. Lee Boulevard. More specifically, the major who was stationed at the barricades estimated that the distance at which they were visible would have been 200 to 250 feet, though he did acknowledge that on the morning in question, “[t]he way the sun was up, [a cyclist or motorist] would possibly [have] been looking into the sun.” Lastly, the SMMA captain calculated that the distance from the first line of sight to the barricades was one-tenth of a mile, or 528 feet, concluding that the barricades were “highly visible.” The captain also echoed other testimony that “[i]t was a clear day, the sun was out, [and] visibility was good.”

Finally, Nancy Amestoy’s expert testified that from his position and speed on a bicycle, Martin Amestoy likely would have seen the gap between the barricades when he was approximately fifteen feet away, giving him about one-half of a second to react. But when questioned about the distance from which the barricades themselves would have been visible, the expert testified that he did not “have an answer for that” and that he did not “know how far back they would have been seen,” though he opined that it would not have been “very far.” He also testified that he had no way of knowing what Martin Amestoy was doing “10, 20, [or] 50 feet prior to the barricades.”

Considering the above testimony, Nancy Amestoy presented no evidence that SMMA had actual knowledge that the barricades were not apparent to park users when they were open and obvious, as overwhelmingly demonstrated by the foregoing testimony and photographic evidence. Indeed, as previously noted, there is no evidence that SMMA officials knew that the barricades were not apparent. Although Nancy Amestoy claims that SMMA stationed a major at the barricades to provide warnings to approaching motorists and bicyclists and that this officer had actual knowledge of the need to provide such warnings, there is no evidence to substantiate these assertions. Instead, the major testified that the objective of his post was to “turn the cars around, bicyclists around.” Additionally, the SMMA captain testified that the purpose of the major’s post was “to block the road, to keep cars from going down into that area where the people would be crossing” and “protect the walkers,” not to “protect bicyclists and cars.” And when further asked if there was “any interest in protecting the bicyclists or the vehicles from entering that area,” the captain responded that “[o]ur objective is to protect everybody in the park.” But this diplomatic answer is a far cry from testimony that would create a genuine issue of material fact as to whether SMMA officials had actual knowledge that the barricades themselves were not apparent—or open and obvious—to park users.

Furthermore, even if we were to assume that Martin Amestoy could not see the barricades from his position and speed on his bicycle or due to the sun’s location at the exact moment of his accident on the morning in question, whether a dangerous condition is open and obvious depends on the objective knowledge of a reasonable person, not on the plaintiff’s subjective knowledge.

Decided June 21, 2016.

Samuel S. Olens, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Kirsten S. Daughdril, Senior Assistant Attorneys General, Kristine K. Hayter, Assistant Attorney General, for appellant.

Childers, Schleuter & Smith, William A. Parker, Jr., for appellee.

In light of the foregoing, we must reverse the trial court’s denial of SMMA’s motion for summary judgment.

Judgment reversed.

Phipps, P. J., and Peterson, J., concur.

        See OCGA § 51-3-20 et seq.\ see also OCGA § 51-3-20 (“The purpose of this article is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting the owners’ liability toward persons entering thereon for recreational purposes.”).

        See, e.g., Holcomb v. Long, 329 Ga. App. 515, 517 (765 SE2d 687) (2014).

       Nancy Amestoy alleges that her husband may have been attempting to avoid a collision with the barricades by trying to ride between them. Officers could not speak to Martin after the collision to ascertain his version of events because he was unconscious. But Nancy’s expert opined that “once [Martin] was aware of [the barricades,] his only path of travel was between the two barricades.”

        See Gayle v. Frank Callen Boys & Girls Club, 322 Ga.App. 412, 412 (745 SE2d 695) (2013) (“A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment[.]” (punctuation omitted)).

        See id. (“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.” (punctuation omitted)).

        See Farris v. First Fin. Bank, 313 Ga. App. 460, 462 (722 SE2d 89) (2011) (“This burden is met by a defendant when the court is shown that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” (punctuation omitted)).

        La Quin ta Inns, Inc. v. Leech, 289 Ga. App. 812, 812 (658 SE2d 637) (2008) (punctuation omitted).

        Gayle, 322 Ga. App. at 413 (punctuation omitted). The RPA applies when the property is “open to the public for recreational purposes and the owner does not charge an admission fee.” Id. at 414. It is undisputed between the parties that Stone Mountain Park is open to the public for recreational purposes and does not charge an admission fee. See OCGA § 51-3-21 (a) (“ ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land.”); see also Hogue v. Stone Mtn. Mem. Ass’n, 183 Ga. App. 378, 380 (1) (358 SE2d 852) (1987) (holding that initial motor-vehicle fee was “a permit for the use of a vehicle in the park” and that “the trial court was authorized to conclude as a matter of law that this fee did not constitute a charge for the recreational use of the parkland itself”).

       OCGA § 51-3-25 (1); see also Gayle, 322 Ga. App. at 415.

        Collins v. City of Summerville, 284 Ga. App. 54, 56 (643 SE2d 305) (2007) (punctuation omitted); accord Cooley v. City of Carrollton, 249 Ga. App. 387, 388 (547 SE2d 689) (2001); Spivey v. City of Baxley, 210 Ga. App. 772, 773 (437 SE2d 623) (1993).

        Collins, 284 Ga. App. at 56 (punctuation omitted); accord Gayle, 322 Ga. App. at 415.

       The parties do not dispute that the first prong of this test is satisfied.

        See Gayle, 322 Ga. App. at 415 (listing the four requirements); Collins, 284 Ga. App. at 56 (same); Spivey, 210 Ga.App. at 773 (same); Quick v. Stone Mtn. Mem. Ass’n, 204 Ga. App. 598, 599 (420 SE2d 36) (1992) (same); see also Edmondson v. Brooks Cty. Bd. of Educ., 205 Ga. App. 662, 663 (423 SE2d 413) (1992) (noting that, in the fourth prong, “ *[t]his knowledge’ refers to the three previously listed facts of which the owner must have actual knowledge in order to be liable for ‘choosing not to guard or warn’ ” (punctuation omitted)).

        See Collins, 284 Ga. App. at 56 (“Constructive knowledge is not sufficient, and no duty to inspect is imposed on the property owner.”); Ga. Dep’t of Transp. v. Thompson, 270 Ga. App. 265, 269 (2) (a) (606 SE2d 323) (2004) (“This test excludes either constructive knowledge or a duty to inspect.” (punctuation omitted)).

        See, e.g., Lee v. Dep’t of Nat’l Res., 263 Ga. App. 491, 493-94 (3) (588 SE2d 260) (2003) (holding that, despite uncontroverted satisfaction of first prong, failure to satisfy other prongs was fatal to claim); Edmondson, 205 Ga. App. at 663 (noting that, in holding that RPA immunized defendant from liability, the issue of liability under the RPA is “resolved by a four-part test” and the defendants “reified] on the absence of the third prong of the test”).

        See Gayle, 322 Ga. App. at 415; Collins, 284 Ga. App. at 56; Norton v. Cobb Cty., 284 Ga. App. 303, 307 (3) (643 SE2d 803) (2007) (physical precedent only).

       126 Ga. App. 562, 563-64 (1) (191 SE2d 305) (1972) (“In the context of the whole statute, it would seem that a wilful failure to guard or warn would require actual knowledge of the owner that its property is being used for recreational purposes; that a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.”), reversed on other grounds by 229 Ga. 811 (194 SE2d 440) (1972); see also Ga. Marble Co. v. Warren, 183 Ga. App. 866, 867 (1) (360 SE2d 286) (1987) (adopting the four-part test as previously set forth in McGruder v. Ga. Power Co., and noting that “[ajlthough the test was turned into dicta by the Supreme Court’s ruling that the RPA was not applicable in that case, it is sound”).

        See Ray v. Ga. Dep’t of Nat’l Res., 296 Ga. App. 700, 702 (1) (675 SE2d 585) (2009); Lee, 263 Ga. App. at 493-94 (3); Thompson, 270 Ga. App. at 269 (2) (a); S. Gwinnett Athletic Ass’n. v. Nash, 220 Ga. App. 116, 119 (1) (469 SE2d 276) (1996); Spivey, 210 Ga. App. at 773; Quick, 204 Ga. App. at 599; Edmondson, 205 Ga. App. at 663; Warren, 183 Ga. App. at 867 (1).

        Hendrickson v. Ga. Power Co., 80 FSupp2d 1374, 1379 (III) (B) (M.D. Ga. 2000) (acknowledging that this Court uses a four-part test, and reciting test so as to make clear that defendant must have “actual knowledge” as to the first three prongs); Ex parte City of Geneva, 707 So2d 626, 629 n.2 (Ala. 1997) (construing Alabama’s recreational-use statute and observing that “the four-part ‘actual knowledge’ test of [Ala. Code] § 35-15-24 [(which applies ‘actual knowledge’ to the first three prongs of test)] appears likely to be a codification of the test employed by the state courts of Georgia when determining whether a noncommercial recreational landowner may be liable for ‘willful . . . failure to guard or warn against a dangerous condition, use, structure, or activity.’ ”).

        See Ray, 296 Ga. App. at 702 (2) (“The . . . third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to showthat defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

        Cf. Turkette v. Cent. of Ga. Ry. Co., 117 Ga. App. 617, 617 (161 SE2d 362) (1968) (holding that court erred in dismissing petition alleging negligence when plaintiff collided with warning device placed in roadway by defendant while traveling in the dark, in the rain, and under circumstances of poor visibility; and obstruction was unlighted, obscured from plaintiff’s vision by its placement, and could not be.seen until within 10 feet); Rogers v. Johnson, 94 Ga.App. 666, 666 (syllabus), 677 (1), 678 (3) (96 SE2d 285) (1956) (sustaining verdict for plaintiff when decedent was traveling roadway at night in car that collided with defendant’s vehicle, which was hauling house-trailer, nearly blocking the entire roadway after making a lefthand turn); Trammell v. Matthews, 84 Ga.App. 332, 338-39 (1) (66 SE2d 183) (1951) (holding that there was a questionfor the jury as to negligence when plaintiff alleged, inter alia, “that had the defendant placed proper warnings at the point where the detour went around the place where the bridge was out, the driver of the car ... would not have passed the detour and gone through the partial road block and then into the place where the bridge was out,” and when it appeared from the plaintiff’s petition “that the way ahead of the driver of this car was not clear, that it was yet dark, and the road was not straight as one approached this partial road block from the [s]outh; that the detour was the same color as the paved road; [and] that the partial road block was not sufficient and adequate to prevent one from assuming that the road could be used”).

        See Metro. Atlanta Rapid Tansit Auth. v. Fife, 220 Ga. App. 298, 299, 300 (1) (469 SE2d 420) (1996) (noting that photographic evidence showed that allegedly dangerous condition of drainage culvert was “plainly visible to anyone standing at the curb,” and holding that condition was open and obvious); Warren, 183 Ga. App. at 868 (1) (“Photographs of the stream illustrate that even a first time visitor to the stream would perceive that the stream’s bed was or at least was likely to be rocky. . . . The rocky condition of the terrain in and about the stream was open and obvious.”); see also Engelson v. Little Falls Area Chamber of Commerce, No. Civ. 101-102, 2002 WL 31689432, at *3 (3) (D. Minn. 2002) (noting, in case involving a plaintiff who tripped over an orange traffic cone, that “[t]he test for obviousness is an objective test that examines whether the danger was in fact visible, rather than whether the injured party actually saw the danger,” and concluding that not only were traffic cones obvious but that defendants “could not have anticipated harm from the cones because traffic cones are, themselves, warning markers”).

        See Ray, 296 Ga. App. at 702 (1) (“The . . . third prong of this test was not met, because no evidence was presented that appellees had actual knowledge of a condition that was not apparent to persons using the property.”); Edmondson, 205 Ga. App. at 663 (“[The third] prong requires plaintiffs to show that defendants actually knew that the dangerous condition of the merry-go-round was not apparent to those using the playground.”).

       (Emphasis supplied.)

        See Morris v. Clark Equip. Co., 904 FSupp. 1379, 1383 (II) (B) (M.D. Ga. 1995) (“In determining whether a danger was open and obvious to the injured party, the court should use an objective point of view, as opposed to subjective, since the user’s perceptions are irrelevant.”); see also Weatherby v. Honda Motor Co., 195 Ga. App. 169, 171 (393 SE2d 64) (1990) (“In determining, under the ‘open and obvious rule,’ whether the peril from which an injury results is latent or patent, the decision is made on the basis of an objective view ..., and the subjective perceptions oftheuseror injured party are irrelevant.”), overruled on other grounds by Ogletree v. Navistar Intern. Transp. Corp., 269 Ga. 443, 443-44 (500 SE2d 570) (1998) (holding that “open and obvious danger” rule is not applicable in cases of alleged design defect). See generally 62A Am. Jur. 2d Premises Liability § 713 (2016) (“Whether a condition is open and obvious, for premises liability purposes, depends on the objective knowledge of a reasonable person, not the plaintiff’s subjective knowledge. The test for what constitutes an ‘obvious’ danger is an objective test: the question is not whether the injured party actually saw the danger, but whether it was in fact visible.” (footnotes omitted)).

        See Nash, 220 Ga. App. at 119 (1) (reversing denial of motion for summary judgment when, inter alia, “even assuming for the sake of argument that the unfinished bleachers presented a dangerous condition, there is no evidence that the [defendant] had any knowledge that this condition was not apparent to people using the property”).


author: Peterson, Judge.

text:
    A16A0171.
    FLOYD v. GIBSON.
    (788 SE2d 84)
   Peterson, Judge.

This is the second time this child custody case has come before us. The first time, the trial court’s order awarding custody of the children to their maternal grandmother instead of their father left us unsure whether the trial court had made all of the required findings and considered all of the applicable factors. We vacated the order and remanded for the trial court to consider all the factors and make explicit findings. But on remand, the trial court instead adopted a proposed order from the grandmother that simply edited the prior order (based entirely on evidence now well over two years old) to include, as the trial court put it, the required “magic words.” The father argues that the trial court’s new order applied an incorrect standard and that the evidence did not support the court’s custody determination. We again vacate the trial court’s order because the court failed to consider substantively all the circumstances of the case in accordance with our previous instruction, and remand for further proceedings consistent with this opinion.

Shannon Lee Floyd (“the father”) and the mother, who were never married, have three minor children. The children lived with both parents until the parents separated in 2012, after which the children remained with their mother. Shortly thereafter, the children’s mother was granted a temporary protective order against the father after he allegedly threatened to kill her and the children. The father was not separately charged for any crime associated with that incident and disputes the version of facts that formed the basis for the protective order. The mother maintained custody of the children but continued to leave them with the father for weekend visitations. In May 2013, the children were removed from their mother’s custody after she suffered a drug overdose and were placed with Sherry Anne Gibson, the children’s maternal grandmother (“the grandmother”).

Soon thereafter, the grandmother petitioned for custody The children moved into the grandmother’s home, which was shared with the grandmother’s 16-year-old son and the grandmother’s husband, who had recently been released from prison. The father answered, counterclaimed for custody, and began the legitimation process. During that process, it was revealed that the father was being treated with methadone, although the father disputed that drug addiction was the reason for the methadone treatment. The father was living at his mother’s house, was employed, and had been paying child support. The judge awarded temporary custody to the grandmother because the father had not yet legitimated the children. Several months later, an order was entered legitimating the children.

In October 2013, the trial court held a permanent custody hearing. After receiving requested proposed orders from the parties, on November 5, 2013, the court entered the grandmother’s proposed order awarding her custody of the children. The father moved for a new trial, which was denied. The father appealed, arguing the trial court had applied an incorrect standard and that the evidence did not support the court’s custody determination.

On March 19, 2015, we vacated the trial court’s order and remanded for reconsideration, holding that it was not apparent whether the trial court had “made the requisite determination that the children would suffer ‘either physical harm or significant, long-term emotional harm’ ” if placed in the father’s custody as required by Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99) (2001) (plurality decision), or whether the trial court had “considered the four factors set forth in Clark with regard to custody determinations in cases in which certain third-party relatives seek custody from parents.” Floyd v. Gibson, 331 Ga. App. 301, 303-04 (1) (771 SE2d 12) (2015) (physical precedent only).

Following remand, the father moved for a hearing, which the trial court granted. At the hearing, the court discussed with the parties how to proceed. The grandmother argued that the vacated order simply needed to be amended. The father objected, noting that all the evidence in the case was, at that time, nearly two years old, and that a change in circumstances warranted an emergency custody hearing. The trial court indicated that it did not intend to hear any new evidence, and that it would review a proposed order from the grandmother based upon the same evidence that had been presented nearly two years earlier. But the trial court also stated that it would set a hearing on the emergency custody motion.

Less than a week later, the trial court e-mailed the parties stating that it did not “see a need to re-litigate the case” and that it simply intended to amend its original order to “comply with what the Court of Appeals wants,” which it described as simply adding “magic words” to the prior order. The trial court judge further stated, “I stand by my ruling, I just need an amended order to comply with the [Court of Appeals].”

Less than two weeks later, on July 22, 2015, the trial court entered a final order, drafted by the grandmother’s counsel, awarding permanent custody to the grandmother. The trial court attached an “addendum” to that final order, however, stating that the court had “concerns that the language expressed [in the order] may not directly address the reasons the Court of Appeals vacated the prior Order.” The trial court also observed that the order was “based on the testimony before the Court on October 17, 2013” and that there “may have been substantial changes since that date[.]” For this reason, the trial court stated it would hold a hearing, though the record does not reflect any such hearing. Nevertheless, based on that well-aged evidence that may have changed substantially, the trial court found “it likely that future physical and mental harm may be done to the children if placed in the father’s custody” and issued the order awarding permanent custody to the grandmother. This appeal followed.

1. The father correctly argues that the trial court failed to apply the proper standard in determining custody. In Georgia,

a parent has a right of custody to h[is] children] in preference to a third party unless there is clear and convincing evidence that the parent is unfit. The focus of such a determination of unfitness must be the parent’s ability to provide for the child[ren] in a manner sufficient to preclude the need for an entity of the government to intervene and separate the children] from the parent, and a court is not permitted to terminate a parent’s natural right to custody merely because it believes that the children] might have better financial, educational, or moral advantages elsewhere, that is, the parent’s ability to raise h[is] children] is not to be compared to the fitness of a third person.

Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011) (citations omitted). OCGA § 19-7-l(b.l), which governs custodial disputes between the father and grandmother, establishes a rebuttable presumption that it is in the best interest of the children for custody tobe awarded to the father. OCGA § 19-7-l(b.l). The Supreme Court of Georgia previously concluded that there are three presumptions implicit in the statute: “(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her children, and (3) the children’s best interest is to be in the custody of a parent.” Clark, 273 Ga. at 593 (II).

The father may lose custody of his children to the grandmother only

if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the . . . children and will best promote their welfare and happiness.

OCGA § 19-7-1(b.1) (emphasis added). The “best-interest-of-the-children” standard requires “the third party to show that parental custody would harm the child[ren]” in order to rebut the statutory presumption in favor of the parent. Clark, 273 Ga. at 598 (IV). The harm must be either physical “or significant, long-term emotional harm; we do not mean merely social or economic disadvantages.” Id. “Once this presumption is overcome, the third party must show that an award of custody to him or her will best promote the child[ren]’s health, welfare, and happiness.” Id.

Additionally, as we directed the trial court last time, the court should consider four factors with respect to determining custody and harm:

(1) who are the past and present caretakers of the children; (2) with whom have the children formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the children over time; (4) do the children have unique medical or psychological needs that one party is better able to meet.

Floyd, 331 Ga. App. at 303 (1) (citing Clark, 273 Ga. at 598-99 (IV)) (punctuation omitted).

The father correctly argues that the trial court applied the wrong standard when it made its tentative findings of future physical and mental harm. The standard requires a showing by the third party that a child “will suffer physical or emotional harm if custody were awarded to the biological parent[,]” not that the harm “may” result, as found by the trial court. See Clark, 273 Ga. at 599 (V) (emphasis added). While we agree with the father’s argument, we note that the simultaneous existence of both the order and the addendum that followed it creates an oddity here. In the order, the court appears to make its ruling quite decisively — but then calls into question the findings underpinning that ruling with its addendum. Taking the two orders together, along with the trial court’s comments at the hearing and via e-mail, it becomes entirely unclear what findings the trial court actually made. This lack of clarity is due in large part to the court’s verbatim adoption of a proposed order with which the court appears not to have fully agreed. See Outdoor Adv. Ass’n of Ga., Inc. v. Dep’t of Transp., 186 Ga. App. 550, 550 (1) (367 SE2d 827) (1988) (“It has been noted that when the trial court adopts verbatim the proposed findings and conclusions of the prevailing party the adequacy of the findings is more apt to be questioned, the losing party may forfeit his undeniable right to be assured that his position has been thoroughly considered, and the independence of the trial court’s thought process may be cast in doubt.”) (citation omitted).

Our prior instruction in March 2015 to the trial court was intended to do more than simply garner the addition of certain “magic words” to the trial court’s 2013 order depriving the father of custody Rather, the trial court was instructed to conduct a substantive analysis of the Clark factors, and determine whether the children would suffer physical “or significant, long-term emotional harm” by having custody awarded to their father. See Floyd, 331 Ga. App. at 303-304 (1). The considerations the trial court was instructed to make were to be supported by findings of fact. While evidence of prior acts can support a conclusion that the children would suffer harm if custody were awarded to their father, the trial court failed to consider “all the circumstances of the case” when it declined to consider any evidence that was less than 21 months old at the time despite explicitly acknowledging that circumstances may have changed. The trial court’s concession to the staleness of the evidence before it — offering a post-order hearing — is inadequate. This “order first, then hearing” approach is puzzlingly backwards.

Decided June 21, 2016.

Cook, Noell, Tolley & Bates, Edward D. Tolley, Devin H. Smith; Merial Limited, Judy Jarecki-Black; Alston & Bird, Matthew W. Howell, for appellant.

The grandmother asks that we attribute any error in the revised order to her counsel instead of the trial court because her counsel drafted the revised order for the court and made the “required findings” for the court. But this argument underscores the necessity of our vacating the trial court’s order and misunderstands how the judicial process should work. An order adopted by a trial court becomes its own, and the findings must be its own (although it may be assisted by counsel). We cannot apply the appropriate deferential standard of review to the trial court’s findings of fact when it is entirely unclear that the trial court even made any such findings, or where it failed to base its findings, to the extent any were made, on contemporaneous evidence.

“[Pjarents have a fundamental liberty interest in the care, custody, and management of their children and there can scarcely be imagined a more fundamental and fiercely guarded right than the right of a natural parent to his offspring.” See In the Interest of M. F., 298 Ga. 138, 145 (2) (780 SE2d 291) (2015) (citations and punctuation omitted). When that fundamental interest is at stake, the court must give full, fair, and thoughtful consideration to the serious matter at hand. Accordingly, we again vacate the trial court’s judgment, although we do not do so lightly We are mindful of the additional delay this will cause both in the permanent placement of the children and in the adjudication of the father’s parental rights, due in no small part to the time this court has had to expend due to unclear orders of the trial court. However, we are obligated to ensure that the law has been followed, and so we remand the case for reconsideration and an evidentiary hearing consistent with this opinion. To ensure a third error is avoided, we direct the trial court — following the evidentiary hearing on remand — to craft its own order without the use of proposed orders from the parties.

2. In light of our holding in Division 1, we need not address the father’s remaining enumerations.

Judgment vacated and case remanded with direction.

Phipps, P. J., and Dillard, J., concur.

Margaret N. Dyal, for appellee.

       The mother conceded she was not a placement option for the children.


author: PHIPPS, Presiding Judge.

text:
    A16A0242.
    AMEY v. THE STATE.
    (788 SE2d 80)
   PHIPPS, Presiding Judge.

In connection with a drive-by shooting, Terrell Amey was convicted of aggravated assault and cruelty to children. In this appeal, Amey contends that the trial court erred by admitting into evidence a certain letter. We affirm.

At the jury trial, the state’s witnesses testified to the following. During the late night of April 14, 2012, Amey was the front seat passenger of an SUV being driven by his adult male cousin. Seated behind the driver was an adult male, who was a close friend of both Amey and the driver. Seated behind Amey was the driver’s one-year old son.

The driver received a phone call, and the caller’s voice was heard through the SUV’s speakers. The caller, who was an adult male cousin of Amey and the driver, exclaimed that “some boys was trying to jump” on him at a particular Pilot gas station. The immediate reactions by the men in the SUV, as detailed at trial by both the driver and the back seat passenger, led to the shooting underlying this case.

The driver testified, “We all agreed to go down there and see what was going on.” When they arrived at the Pilot gas station, the caller was with another relative of the driver. The caller began pointing to a Dodge Charger that was exiting the parking lot. The driver of the SUV inferred from such gesturing that, leaving the scene in that vehicle, “must have been the guys that was trying to mess with them or jump on them.” The driver quickly made a U-turn and pursued the Charger. As the driver testified, “[W]hen I went up the road [Amey] told [the back seat passenger] to pass the gun to [him]. When [the back seat passenger] passed the gun [Amey] rolled down the window and he told me to pull up beside [the Charger]The road, as the driver described at trial, had only two lanes — each for traveling in the opposite direction of the other. The driver recounted what happened when he next steered the SUV into the lane designated for traveling in the opposite direction: “I pulled up beside [the Charger,] and he fired shots.” The prosecutor asked for clarification: “And who was the shooter that night?” The driver answered, “Terrell Amey”

The back seat passenger gave a similar account at trial. Upon receiving the call, they “proceeded to go to the Pilot.” Once there, they saw the “Charger leaving the scene,” so they “proceeded to go behind them.” Amey asked for his (the back seat passenger’s) handgun, which the back seat passenger typically kept on his waistband. The back seat passenger handed his gun to Amey Amey lowered his window and extended his arm outside the SUV. When the SUV and the Charger were aligned, “[h]e ... started shooting.” The prosecutor asked for clarification, “Who shot that gun?” The back seat passenger answered, “Terrell Amey”

The driver and the back seat passenger were co-indicted with Amey on charges of: (1) aggravated assault upon the driver of the Charger; and (2) cruelty to children, for committing the aggravated assault in the presence of the driver’s minor son. As the driver and back seat passenger acknowledged while on the stand, both had entered negotiated guilty pleas in exchange for their testimony at Amey’s trial, and were then residing in prison.

Also at trial, the man who had been driving the Charger at the time it was fired upon took the stand. He described leaving the Pilot, being chased by the SUV, then being fired upon from the SUV’s passenger-side window. And a police officer who had investigated the criminal incident testified that several bullets had penetrated the rear quarter panel of the Charger and its trunk.

The state also presented evidence of the letter in question. To introduce that letter, the state called to the stand an assistant district attorney who had been temporarily assigned to the case (“the former ADA”). From that witness, the state elicited testimony that, during the trial preparation period, Amey’s lawyer provided to him an envelope with a letter inside. The envelope was hand-addressed to “Terrell Amey”; the sender, the envelope showed, was Amey’s cousin who had been the driver of the SUV during the drive-by. The letter inside was also handwritten. It stated, in pertinent part:

Rell, It hurt me to go along with that lie [the back seat passenger] told when he said yu shot at that car. I’m sorry I just went along with it because I thought u had left the courtroom and I knew by me taking a plea that I was going to meet up with him in jail. And I didn’t want to have to fight him about him saying I told on him. He knew he shot out that back window. Yu was in the passenger seat. Yu was still sleep until the shot went off. But if yu have to go to trial yu know I’m not gone come and lie for him this time. . . . “E” a real dummy. . . . Love ya, Dip

“E,” as the prosecutor had elicited from the back seat passenger, was the back seat passenger’s nickname. And “Dip,” as the prosecutor had elicited from the driver, was the driver’s nickname.

When the prosecutor had the driver on the stand, however, the prosecutor questioned the driver about whether he had written to family members since his incarceration, and more specifically, whether he could identify the envelope and letter described above. The driver responded that he had written to his family, including one letter to Amey The driver identified the hand-addressed envelope as the one in which he had mailed his letter to Amey But when shown the letter (recited, in part, above), the driver claimed that it was not the letter that he had placed inside that envelope. As the driver explained, “I didn’t write that letter. ... I sent him a letter but it wasn’t saying nothing what that says.”

Amey complains on appeal, “[T]he only practical purpose for the admission of the letter was to infer [sic] that it was written by the defendant in an attempt to mislead the state.” Contending that the trial court erred by admitting the letter in evidence, Amey advances the following arguments.

1. First, Amey argues that the letter was inadmissible for lack of authentication. He cites OCGA § 24-9-901 (a), which provides: “The requirement of authentication or identification as a condition precedent to admissibility shall be satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.”

Prior to opening statements, the trial court conducted a hearing on the admissibility of the letter. Amey’s lawyer made clear that the defense would not be seeking to present the letter to the jury and further sought a ruling disallowing the state from using the letter, positing that the state would not be able to authenticate it.

The prosecutor responded, “[The former ADA] could be called to testify he received this [letter] from the Defense.” The prosecutor further apprised the court that, during trial preparation, the state asked the driver about the letter, and the driver denied writing it. Positing that the letter was nevertheless admissible, the prosecutor explained:

The letter is not being offered as to prove the truth of the matter asserted in that, quite the contrary. That it is in fact not true, that there was a falsity made in this case that was attempted to be perpetrated on the State. It was offered by the Defense as something that this co-defendant [driver] had written, which he apparently has not.

After hearing additional argument from both sides, the court overruled the defense objection, and the state introduced the letter (and the envelope) as set forth above.

Maintaining that the letter was inadmissible for lack of authentication, Amey points out that the state adduced no witness who saw the letter being written, presented no testimony by a handwriting expert or a witness familiar with the handwriting, and introduced no other writing with which the jury could compare the letter. Amey concedes in his brief that “he was, at one point, in custody of [the letter],” but he recites language in McCombs v. State that “‘[i]t would ... be a very unsafe rule to hold that the possession and ownership of a . . . document may authorize an inference that the owner . . . did write the matter contained in it.’ ”

We agree with the state that it sufficiently authenticated the letter pursuant to OCGA § 24-9-901 (b), which allows for authentication based upon its “[a]ppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances[.]” As the state concedes (and as the record demonstrates), “the letter was offered to show that [Amey] fabricated [a document] in an attempt to deceive the [s]tate and avoid punishment.” Hence, the state had the burden of presenting “sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be. Once that prima facie case is established, the evidence is admitted and the ultimate question of authenticity is decided by the jury.”

Here, the contents and substance of the letter demonstrated that its author knew details of the drive-by shooting, including the occupants of the SUV and their seating arrangement. The author of the letter was familiar with the driver’s and back seat passenger’s nicknames: “Dip” and “E.” The letter was written by someone who knew that Amey’s traveling companions/co-indictees had pled guilty to the charges and agreed to testify against him — a fact of which Amey would have been aware through discussions with his attorney The version of events set forth in the letter — that Amey had been asleep until the gun was discharged — was consistent with a conclusion that Amey was not guilty, even as a party to the crimes. Moreover, the letter contained purported admissions that the driver had perjured himself by falsely testifying that Amey was the shooter; but nothing in the record shows what the driver might have gained from thereby admitting perjury. Amey, on the other hand, stood to gain support for a defense that might have exonerated him of all charges. As Amey concedes, the letter had been in his possession. And his lawyer subsequently gave it to the former ADA. Furthermore, although the letter was purportedly signed by the driver, the driver disclaimed writing it.

In light of these circumstances, the state carried its burden of presenting sufficient evidence to make out a prima facie case that the letter was authored by Amey. Because the trial court thus did not err by rejecting Amey’s authentication objection, this evidentiary challenge provides no basis for disturbing the judgment of conviction.

2. Alternatively, Amey argues that the letter should have been excluded under OCGA § 24-4-403, which states: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” According to Amey, “The letter here offered scant probative value and any such value was substantially outweighed by the prejudicial effect its admittance undoubtedly had on the jury. In this case it would have been impossible for a jury person, after the admittance of such a letter, to judge this case fairly”

Prefermitting whether Amey waived this issue by failing to raise it before the trial court, we find the argument without merit.

[T]he plain meaning of OCGA § 24-4-403’s text makes clear that the trial court may only exclude relevant evidence when its probative value is “substantially outweighed” by one of the designated concerns. Indeed, the Eleventh Circuit has described Rule 403 as “an extraordinary remedy which the . . . court [s] should invoke sparingly, and the balance should be struck in favor of admissibility” Obviously, the reason for such caution is that relevant evidence in a criminal trial is “inherently prejudicial.”

The letter was introduced as evidence of Amey’s guilty conscience relating to the shooting incident. “Evidence of [Amey’s] consciousness of guilt was certainly relevant at his trial.” Our review of the record convinces us that the letter was not rendered inadmissible for reason that its relevance was “substantially outweighed” by any “danger of unfair prejudice.” Consequently, this evidentiary challenge provides no basis for disturbing the judgment of conviction.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

Decided June 21, 2016.

Swindle Law Group, Jason W. Swindle, Sr., Dane M. Garland, for appellant.

Peter J. Skandalakis, District Attorney, Antoinette N. Wood, Assistant District Attorney, for appellee.

       (Emphasis supplied.)

        Alexis v. State, 313 Ga. App. 283, 286 (2) (721 SE2d 205) (2011) (“Whether to admit evidence is a matter resting in the trial court’s sound discretion.”) (citation and punctuation omitted).

       This case was tried after January 1, 2013, which was the effective date of Georgia’s new Evidence Code, including OCGA § 24-9-901 (“Requirement of authentication or identification”). See generally Moore v. State, 295 Ga. 709, 713 (3), n. 2 (763 SE2d 670) (2014).

       (Emphasis supplied.)

       109 Ga. 496 (34 SE 1021) (1900).

       Id. at 499 (1), quoting Van Sickle v. People, 29 Mich. 61, 65 (1874).

       OCGA § 24-9-901 (b) (4). Accord State v. Smith, 246 Ga. 129, 130 (269 SE2d 21) (1980) (recognizing that “possession, together with other circumstances, may meet the burden” of establishing authenticity of a document) (citation and punctuation omitted).

        Brown v. State, 332 Ga.App. 635, 639 (2) (774 SE2d 708) (2015) (citations and punctuation omitted) (addressing authenticity requirements under OCGA § 24-9-901).

       See Smith, supra (holding that a document found in defendant’s possession and purportedly written by defendant’s accomplice was sufficiently authenticated as written by the accomplice, given the document’s content and references to “circumstances [that] were peculiarly within the knowledge” of the accomplice); Armstrong v. State, 249 Ga. App. 772, 775 (3) (549 SE2d 545) (2001) (explaining that trial court did not err by overruling authentication objection to unsigned notes that were addressed to, and received by, defendant’s accomplice, where there was circumstantial evidence that the defendant had penned the notes, including: the notes accomplice received threatened him if he “snitched,” and the only person against whom the accomplice had agreed to testify was the defendant); Weathers v. State, 198 Ga. App. 871-872 (3) (403 SE2d 449) (1991) (explaining that the state made a prima facie showing of authenticity that the defendant’s alleged accomplice had authored a letter to the District Attorney that offered to testify against defendant if his sentences were shortened, because despite the alleged accomplice’s subsequent denial of authoring the letter, the letter bore the alleged accomplice’s correct name and address, the contents of the letter “indicated that its author had first-hand detailed knowledge of how the crime had been committed,” and the alleged accomplice “had a peculiar interest” in penning the letter).

       Compare OCGA § 24-1-103 (a) (1) (“Error shall not be predicated upon a ruling which admits . .. evidence unless a substantial right of the party is affected and ... a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context [.] ”), with OCGA § 24-1-103 (d) (“Nothing in this Code section shall preclude a court from taking notice of plain errors affecting substantial rights although such errors were not brought to the attention of the court.”).

        Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014) (“OCGA § 24-4-403 ... tracks Federal Rule of Evidence 403.”) (footnotes omitted). “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.” Id. at 879 (1), n. 14 (citation and punctuation omitted).

        Bostic v. State, 294 Ga. 845, 849 (2) (757 SE2d 59) (2014) (citation omitted).

       OCGA § 24-4-403; see Bostic, supra at 848-849 (2) (rejecting argument that evidence of defendant’s statements made while awaiting trial — that he “would ‘win his case,’ because ‘his people [would] put the guy that ID’d him at the scene of the crime ... to sleep,’ which would mean that the State would ‘not be able to go to the grand jury and indict him and he will walk free’ ” — was inadmissible as unfairly prejudicial, where such evidence was relevant to show defendant’s “consciousness of guilt”); Williams, supra.