author: Miller, Judge.

text:
    A13A1980.
    PAYTON v. THE STATE.
    (755 SE2d 261)
   Miller, Judge.

Jonathan Michael Payton was charged with possession of cocaine (OCGA § 16-13-30 (a)), possession of alprazolam (OCGA § 16-13-30 (a)), aggravated assault (OCGA § 16-5-21), simple battery (OCGA § 16-5-23), and possession of less than one ounce of marijuana (OCGA § 16-13-30 (j) (1)). Payton filed a motion to suppress the drugs seized from his bedroom in a warrantless search conducted by police officers pursuant to the homeowner’s consent. The trial court denied Payton’s motion, finding that Payton was a guest, not a tenant, in the homeowner’s house and that, as a result, the homeowner was authorized to consent to the search of Payton’s bedroom. This Court granted Payton’s application for interlocutory review, and on appeal, he contends that the homeowner did not have common authority over his bedroom because he was paying rent, and therefore, the police officers did not have valid consent to conduct the search. For the reasons set forth below, we affirm.

In considering an appeal from the denial of a motion to suppress, this Court construes the evidence in favor of the trial court’s ruling, and we review de novo the trial court’s application of the law to undisputed facts. Additionally, we must defer to the trial court’s determination on the credibility of witnesses, and the trial court’s ruling on disputed facts must be accepted unless it is clearly erroneous.

(Footnotes omitted.) Burke v. State, 302 Ga. App. 469 (691 SE2d 314) (2010).

So viewed, the evidence shows that in August 2011, and for two years prior to this time, Payton lived in a residence at 186 Candler Road in Jones County. Ennis Grady Odom owned the residence, and although he considers Payton to be his grandson, there is no blood relation between the two. Odom, two other unrelated individuals, and Payton all had separate bedrooms in the house. Payton’s girlfriend also resided at the house and shared a bedroom with Payton.

On August 5, 2011, Odom heard a rumbling coming from inside his house, and he then saw Payton and his girlfriend fighting as they came out of their bedroom. According to Odom, Payton and the girlfriend fought down the hallway and into the kitchen, where she grabbed two knives and slashed at Payton, causing several minor wounds. Odom then called the police.

The responding police officer spoke to Payton, his girlfriend, and Odom, who gave a written statement to police. According to the police officer, Payton appeared to be under the influence of drugs or alcohol because he was jumpy, he exhibited dramatic mood swings, and his eyes were bloodshot and glossy. During his investigation, the police officer noticed fresh blood on Payton’s hand, broken furniture, blood in the kitchen and on a broken chair, and a few knives on the kitchen countertop. The officer then arrested Payton and his girlfriend for domestic violence.

After putting Payton into a patrol car, the police officer expressed to Odom that Payton might be involved with drugs and asked for permission to search Payton’s room. The police officer testified that Odom expressed frustration with Payton and his girlfriend because they lived in his house and ate his food without paying for anything. The police officer testified that he understood Odom’s statement to mean that neither Payton nor his girlfriend paid any rent. The police officer further testified that Odom then gave permission to search Payton’s room. The police officer used a drug dog to assist in the search of Payton’s room, and the drug dog alerted to a speaker in Payton’s room. The police officer found cocaine and alprazolam inside the speaker and a marijuana cigarette in an ashtray on a dresser.

Payton was subsequently charged with possession of cocaine, alprazolam, and marijuana, as well as aggravated assault and simple battery. Payton filed a motion to suppress the drugs found in his room, arguing that the police officer was required to ask him for consent to search since he was present at the scene. Following a hearing, the trial court denied Payton’s motion. In so ruling, the trial court specifically found that Payton was a guest, not a tenant, in Odom’s house and that, as a result, Odom had the authority to consent to a search of Payton’s room. This appeal followed.

On appeal, Payton contends that the trial court erred in denying his motion to suppress because the police officers lacked exigent circumstances or valid consent to conduct the warrantless search. Specifically, he argues that the trial court erred in concluding that he was a guest in Odom’s house because Odom’s testimony at the suppression hearing established that he paid rent. We disagree.

1. Odom, as head of the household, had the authority to consent to the search.

The Fourth Amendment states that people shall be secure in their person, houses, papers, and effects, against unreasonable searches and seizures. Fundamentally, there exists a justified expectation of privacy against unreasonable intrusions into the home. Therefore, an unconsented police entry into the home constitutes a search within the meaning of the Fourth Amendment.

(Citation and punctuation omitted.) Hunt v. State, 302 Ga. App. 578, 581 (691 SE2d 368) (2010). A police officer’s warrantless search of a house without consent or exigent circumstances “constitutes an unjustified, forcible intrusion that violates the Fourth Amendment.” (Footnote omitted.) Leon-Velazquez v. State, 269 Ga. App. 760, 761 (1) (605 SE2d 400) (2004).

While a person may have a reasonable expectation of privacy, a warrantless search of a residence may nevertheless “be authorized by the consent of any person who possesses common authority over or sufficient relationship to the premises to be searched” (Citations and punctuation omitted; emphasis supplied.) Smith v. State, 264 Ga. 87, 87-88 (2) (441 SE2d 241) (1994); see also Rockholt v. State, 291 Ga. 85, 88 (2) (727 SE2d 492) (2012) (although defendant, as an overnight guest of a residence, has a reasonable expectation of privacy, the resident owner’s consent to a search gives officers the legal authority to conduct a warrantless search). The “common authority over the premises” is one independent prong unrelated to the second prong of “sufficient relationship to the premises.” State v. West, 237 Ga. App. 185, 185-186 (514 SE2d 257) (1999). As a result, it is the general rule that

the voluntary consent of the head of a household to the search of premises owned or controlled by such head of the household is sufficient to authorize a search of the premises without a search warrant, and such search does not violate the constitutional prohibition against unreasonable searches and seizures.

(Punctuation omitted.) Tolbert v. State, 224 Ga. 291, 293 (2) (161 SE2d 279) (1968); see also Warner v. State, 299 Ga. App. 56, 58 (1) (681 SE2d 624) (2009). A landlord, however, cannot give consent to a search of his tenant’s quarters. Warner, supra, 299 Ga. App. at 58 (1). Consequently, whether Payton was a guest or a tenant is a factual determination that is reserved for the trial court, and we must sustain the trial court’s resolution of this issue if there is any evidence to support it. Id.

In this case, some evidence supported the trial court’s finding that Payton was a guest rather than a tenant. The responding police officer testified that Odom told him that Payton and his girlfriend “don’t pay anything” for living at his house and eating his food. Additionally, Payton told officers that he was unemployed at the time. Although Odom testified at the motion to suppress hearing that Payton paid $75 a week in rent, Odom admitted that he had no documentary proof to show that Payton actually paid rent. Based on this evidence, along with Odom’s admission that he would do what he could to help Payton, the trial court was not required to accept Odom’s testimony that Payton paid rent. Tobias v. State, 319 Ga. App. 320, 323 (1) (735 SE2d 113) (2012) (at a motion to suppress hearing, a trial court has no obligation to believe a witness’s testimony, even in the absence of contradictory testimony). As a result, the trial court was authorized to believe the police officer’s testimony and reject Odom’s testimony in concluding that Payton was Odom’s guest.

Since the trial court found that Payton was a guest in Odom’s house, Odom, as the resident homeowner, was authorized to consent to the search of Payton’s bedroom, regardless of whether Payton was an adult, locked his door, or kept Odom out of his bedroom. See, e.g., Warner, supra, 299 Ga. App. at 58-59 (1) (evidence showing that parents were heads of household, as opposed to landlords, supported trial court’s finding that parents were authorized to consent to a search of their college-age son’s bedroom); West, supra, 237 Ga. App. at 186-187 (resident homeowner had the right to enter the room of her adult son who did not pay rent, regardless of factors such as access or mutual use, and could assign that right to police officers); Howard v. State, 207 Ga. App. 125, 126 (1) (427 SE2d 96) (1993) (defendant’s mother, who co-owned residence with defendant’s father, had a sufficient relationship to premises to consent to warrantless search of her adult son’s bedroom because there was no landlord-tenant relationship between the defendant and his mother). Moreover, there is no evidence that Odom was coerced or placed under duress in order to obtain that consent. See Brown v. State, 288 Ga. 404, 406-407 (2) (703 SE2d 624) (2010) (evidence did not show that householder’s consent to search was obtained as the result of duress or coercion).

2. Police officers reasonably believed Odom had the authority to consent to the search.

Even if Odom did not have the authority to consent to a search of Payton’s bedroom, the search was nevertheless reasonable. In Illinois v. Rodriguez, 497 U. S. 177 (110 SCt 2793, 111 LE2d 148) (1990), the United States Supreme Court held that a search is reasonable when it is based on the consent of a person whom officers reasonably, but erroneously, believe has authority to consent to the search. Id. at 186 (III) (B). As the Supreme Court explained in Rodriguez, the Fourth Amendment does not require that officers “always be correct, but that they always be reasonable.” Id. at 185 (III) (B). This Court has endorsed the Rodriguez principle in several decisions. See, e.g., State v. Parrish, 302 Ga. App. 838, 840 (691 SE2d 888) (2010) (“A warrantless search based upon the consent of a third party will be deemed valid when, at the time of entry, police reasonably believe that the third party possesses common authority over the area to be searched.”) (citation omitted); Warner, supra, 299 Ga. App. at 59 (1) (“[E] ven if the parents in fact did not have the authority to consent to a search of Warner’s bedroom, the circumstances led the police to reasonably believe that the parents had that authority, and therefore the search was valid.”) (citation and footnote omitted); Pike v. State, 265 Ga. App. 575, 577 (1) (594 SE2d 753) (2004) (“[A] warrantless search based on unauthorized consent could nonetheless be upheld if the law enforcement officer conducting the search reasonably (albeit erroneously) believed the consent given was valid.”) (citation and punctuation omitted); Ford v. State, 214 Ga. App. 284, 286-287 (3) (447 SE2d 334) (1994) (en banc) (same).

In this case, Odom told the responding police officer that he owned the house and that Payton lived at the house rent-free. As a result, the police officer reasonably believed that Odom had the authority to consent to the warrantless search. See Warner, supra, 299 Ga. App. at 59 (1) (officers reasonably believed that parents had the authority to consent to a search of the defendant’s bedroom); Pike, supra, 265 Ga. App. at 577 (1) officers reasonably believed that the defendant’s brother, who owned the residence but did not have access or control to the defendant’s bedroom, had the authority to give consent to search the residence, including the defendant’s bedroom, and therefore, the search was valid).

3. Police officers were not required to give Payton an opportunity to object to the search.

Payton’s argument that Georgia v. Randolph, 547 U. S. 103 (126 SCt 1515, 164 LE2d 208) (2006), and Preston v. State, 296 Ga. App. 655 (675 SE2d 553) (2009), require a different result is without merit. In Randolph, the United States Supreme Court held that where co-residents of a house are present, and one consents to a search while the other objects, the search is unreasonable. 547 U. S. at 120 (II) (D). The Randolph Court, however, drew an admittedly “fine line” between two scenarios stating: “if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant’s permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out.” (Emphasis supplied.) Id. at 121 (II) (E); see also Preston, supra, 296 Ga. App. at 658. The Randolph Court held that this “fine line” was justified so long as there was no evidence that the police removed the potentially objecting tenant for the sake of avoiding a possible objection. Randolph, supra, 547 U. S. at 121 (II) (E). Although Payton argues that the police officers should have given him the opportunity to object to the search, nothing in Randolph suggests that the police must offer such an opportunity. To the contrary, the Randolph Court expressly held that police officers are not required “to find a potentially objecting co-tenant before acting on the permission they had already received.” Id. at 122 (II) (E). Analyzing Randolph, the Preston Court made a limited holding that “if an occupant is at the door, . . . , then the officers must inform that occupant that they are conducting a search pursuant to a co-occupant’s consent” in order for the search to be reasonable. Preston, supra, 296 Ga. App. at 658.

Decided March 4, 2014

Reconsideration denied April 8, 2014.

Kristen C. Quinton, for appellant.

Fredric D. Bright, District Attorney, Gregory L. Bushway, Assistant District Attorney, for appellee.

In this case, the officers did not arrive at the residence to execute a search based upon a co-occupant’s consent, and therefore Preston is distinguishable. Although Payton had been arrested and put inside the patrol car when the officers obtained consent, there is no evidence that such action was done for the purpose of avoiding a possible objection to a search. Consequently, Odom’s consent to search gave the police officers legal authority to search Payton’s room. See Brown, supra, 288 Ga. at 406 (2), n. 3 (in the absence of evidence that the defendant expressly objected to the search or that police removed him from the house for the sake of avoiding a possible objection, the consent given by the defendant’s sister, who owned the home, authorized the warrantless search); Burke, supra, 302 Ga. App. at 470-472 (although officers took defendant from home, the search of the home was authorized based upon wife’s consent because there was no evidence that officers removed defendant in order to avoid an objection to the consent); cf. Rockholt, supra, 291 Ga. at 88 (2) (defendant was physically present but failed to express any refusal of consent or any objection to a police search). Accordingly, we affirm the trial court’s decision to deny Payton’s motion to suppress.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       The State argues that the trial court erred in overruling its procedural objection to Payton’s motion to suppress because it was filed more than ten days after his arraignment. OCGA § 17-7-110 requires that “[a]ll pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.” Although the State argues that, under Uniform Superior Court Rule 31.1, the trial court was required to issue a written extension of time to file a pre-trial motion, OCGA § 17-7-110 does not have a writing requirement and the statute controls. See State v. Mojica, 316 Ga. App. 619, 622 (2), n. 8 (730 SE2d 94) (2012). Therefore, the trial court was not required to issue a written extension of time in order to consider Payton’s motion to suppress. Given that the State presented evidence at the suppression hearing, the State was not prejudiced by the untimely motion. Therefore, the trial court did not abuse its discretion in considering Payton’s untimely motion. Id. at 622-623 (2).


source: Caselaw Access Project

license: Public Domain

text:
    A13A2009.
    McCOY v. GEORGIA DEPARTMENT OF ADMINISTRATIVE SERVICES.
    (755 SE2d 362)
   Miller, Judge.

After obtaining a large judgment in an action against, among others, former employees of the Georgia Department of Human Resources Division of Family and Children Services (“DFCS”), Melinda McCoy filed the instant complaint against the Department of Administrative Services (“Department”) to collect the liability limits under a general liability agreement (“Agreement”) between the Department and DFCS. The trial court granted the Department’s motion to dismiss McCoy’s complaint on the ground of sovereign immunity. McCoy appeals, arguing that a waiver of sovereign immunity applies because there is a written contract between the parties. Based on the limited record before us at this early stage in the proceedings, we conclude that McCoy has standing to enforce the Agreement because she is a judgment creditor of a covered party. We therefore reverse.

We review the trial court’s grant of the motion to dismiss on sovereign immunity grounds de novo, bearing in mind that as the party seeking to benefit from the waiver of sovereign immunity, McCoy bears the burden of proof to establish waiver. See Pelham v. Bd. of Regents of Univ. System of Ga., 321 Ga. App. 791 (743 SE2d 469) (2013).

McCoy worked in the Rabun County DFCS office until she was fired in August 2005. In July 2007, McCoy filed a complaint in the Superior Court of Rabun County against several Rabun County DFCS employees, among other defendants, asserting claims for violation of Georgia’s RICO Act, malicious prosecution, and intentional infliction of emotional distress for acts committed in the course and scope of their employment. McCoy’s claims arose out of an alleged scheme in which DFCS employees requested or required unnecessary or unwarranted drug testing on false pretenses and/or in violation of DFCS policy in order to inflate the profits of a private company that contracted to provide drug testing services for DFCS and was owned by the mother of one of the DFCS employees. The Rabun County complaint alleged that after McCoy voiced her concerns about the scheme, some of the defendants fabricated charges and altered case notes to support a false allegation that McCoy committed the offense of reckless conduct in the handling of one of her cases, resulting in a warrant for McCoy’s arrest and termination of her employment.

McCoy alleges in her complaint in this action that she provided the State with notice of the Rabun County action, but the State chose not to defend the DFCS employees named as defendants in that suit. Her complaint further alleges that on April 7, 2009, a jury awarded her $3,729,340.35 in actual damages, $100,000 in attorney fees, and $32,000,000 in punitive damages in the Rabun County action. The superior court subsequently entered a judgment against the defendants for $35,829,340.35.

Thereafter, McCoy sent a letter to the Department requesting the $3,000,000 limit of liability under the Agreement. After receiving McCoy’s letter requesting payment, the Department rejected McCoy’s demand for the limits. McCoy then filed her complaint against the Department, asserting that the Department breached its contractual duties to defend and to contribute to the judgment against Covered Parties under the Agreement.

The record shows that the Department, as administrator of the State Employee Liability Trust Fund, maintained the Agreement with DFCS for the period from July 1, 2003 through June 30, 2004. The Agreement provides liability coverage to DFCS, the “Named Covered Party,” and other “Covered Parties,” including “[p]ersons employed by participating State ‘departments’ in their individual capacity at the time of an ‘occurrence’ covered by the terms of this Agreement.”

The Agreement states that the Department will pay amounts that a “Covered Party becomes legally obligated to pay as ‘damages’ because of . . . ‘personal injury’ to which this coverage applies” and states that “[t]hisAgreement applies to... ‘personal injury’only if the ‘occurrence’ is committed or allegedly committed (1) by a Covered Party while acting in the course and scope of their duties with a participating ‘department’ that has purchased coverage as stated in the Declarations Page.” “Personal injury” under the Agreement encompasses injury arising out of malicious prosecution and wrongful acts “committed by any Covered Party in the exercise of the Covered Party’s duties as authorized by law, or any matter claimed against any Covered Party solely by reason of the Covered Party serving in such capacity.” The Agreement includes a no assignment provision, which also states: “There are no third-party beneficiaries of this Agreement.”

McCoy argues on appeal that the trial court erred in concluding that sovereign immunity bars her breach of contract action. We conclude that because McCoy alleges that she holds an unsatisfied judgment against Covered Parties entitled to coverage under the Agreement, McCoy has standing to bring an action for breach of the Agreement.

Article I, Section II, Paragraph IX of the Georgia Constitution states:

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

Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e). The same paragraph establishes an exception to the defense of sovereign immunity as “to any action ex contractu for the breach of any written contract now existing or hereafter entered into by the state or its departments and agencies.” Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c). See also OCGA § 50-21-1 (a).

It is undisputed that McCoy seeks to enforce a written contract, the Agreement, which the Department and DFCS maintained pursuant to OCGA §§ 45-9-1 (a) and 45-9-4 (a). OCGA § 45-9-1 (a) authorizes DFCS to procure or provide liability insurance “insuring or indemnifying [its employees] to the extent that they are not immune from liability against personal liability for damages arising out of the performance of their duties or in any way connected therewith.” OCGA § 45-9-4 (a) authorizes the Commissioner of Administrative Services to establish a self-insurance program to provide the desired coverage. The issue in contention is whether McCoy is a party to that Agreement or otherwise has standing to bring an action for its breach.

(a) McCoy maintains that she is a party to the Agreement and “should be afforded all the protections thereof” because she qualifies as a Covered Party. The Agreement is signed by the Commissioner of Administrative Services and reflects that DFCS is the Named Covered Party. As such, the Agreement constitutes a contract between the Department and DFCS, and McCoy is not a party to the Agreement.

While McCoy would qualify as a Covered Party to the extent she was employed by DFCS at the time of an occurrence covered under the Agreement, such status makes her at best a potential third-party beneficiary of the Agreement. See Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235, 237 (392 SE2d 3) (1990) (characterizing an “additional insured” under automobile liability insurance policy as a third-party beneficiary); Ericson v. Hill, 109 Ga. App. 759, 761 (1) (137 SE2d 374) (1964) (describing insured other than named insured under automobile liability insurance policy as third-party beneficiary). As such, were McCoy named as a defendant in a lawsuit arising out of a covered occurrence, she would have the right to coverage and a defense under the Agreement and standing to enforce her rights. However, “[t]he rights of a third person to sue on a contract made for his benefit depend on the terms of the agreement and are no greater than those granted by the contract as intended by the parties thereto.” (Punctuation and footnote omitted.) American Water Service USA v. McRae, 286 Ga. App. 762, 763 (650 SE2d 304) (2007). Here, McCoy is not seeking to enforce her rights to coverage, and we find no provision in the Agreement that would allow McCoy, because of her status as a potential Covered Party, to enforce the alleged coverage rights of her former co-employees with regard to the claims she has asserted.

(b) McCoy also contends she is a third-party beneficiary with standing to bring the instant breach of contract claim in her separate capacity as a party injured by the conduct of a Covered Party. McCoy acknowledges, however, that we can reach this conclusion only by making an exception to “the general rule in Georgia that liability claimants are not regarded as third-party beneficiaries of liability [insurance] policies.” Googe v. Florida Intl. Indent. Co., 262 Ga. 546, 548 (1) (422 SE2d 552) (1992). We do not agree.

“In order for a third party to have standing to enforce a contract, it must appear clearly from the contract that it was intended for the benefit of the third party. The mere fact that the third-party would benefit from performance of the agreement is not alone sufficient.” (Citation and punctuation omitted.) Monroe v. Bd. of Regents of Univ. System of Ga., 268 Ga. App. 659, 665 (4) (602 SE2d 219) (2004). McCoy contends that the Agreement is intended not only to protect DFCS employees but also citizens harmed by employees’ wrongful conduct. However, she fails to cite any provision of the Agreement supporting her position. In fact, the Agreement states that there are no third-party beneficiaries. Further, OCGA § 45-9-1 (a) indicates that insurance coverage contemplated by the statute is intended as a benefit for employees in addition to other compensation they receive and makes no reference to compensation of injured third parties. Accordingly, we find no basis to conclude that McCoy is a third-party beneficiary under the Agreement based solely on her status as a third party injured by an alleged Covered Party.

(c) Finally, McCoy maintains that because she is a judgment creditor of an alleged Covered Party, she may assert a claim against the Department under the Agreement. While we express no opinion regarding the ultimate merits of McCoy’s contractual claim, we conclude that her allegation that she is a judgment creditor of a Covered Party entitled to coverage under the Agreement is sufficient, to confer standing on McCoy to bring this action.

While “[a]s a general rule, an injured party has no standing to file a direct suit against the insurer of the party alleged to have caused the injury,” an exception exists when the injured party holds an unsatisfied judgment against the insured. Capitol Indem. Corp. v. Fraley, 266 Ga. App. 561, 563 (1) (597 SE2d 601) (2004); Richards v. State Farm Mut. Automobile Ins. Co., 252 Ga. App. 45 (555 SE2d 506) (2001).

[W]here an injured party obtains an unsatisfied judgment against a party who has insurance covering the injuries — so that the judgment fixes the liability of the insured party to the injured party — the injured party may bring an action directly against the insurer to satisfy the judgment from the available insurance proceeds.

Decided March 26, 2014

Reconsideration denied April 8, 2014

Cathey & Strain, Dennis T. Cathey, Matthew A. Cathey, for appellant.

Samuel S. Olens, Attorney General, Robin J. Leigh, Assistant Attorney General, for appellee.

(Citations omitted.) State Farm Fire and Cas. Co. v. Bauman, 313 Ga. App. 771 (723 SE2d 1) (2012). Once a judgment has been obtained, the injured party is no longer a stranger to the insurance policy but instead “stands in the shoes” of the insured. (Citation omitted.) H. Y. Akers & Sons, Inc. v. St. Louis Fire & Marine Ins. Co., 120 Ga. App. 800, 804 (2) (172 SE2d 355) (1969). Consequently, a judgment creditor “derives his rights under the policy through the insured, and he is entitled to recover under the policy only if it appears that all conditions precedent have been complied with.” (Citation and punctuation omitted.) Hathaway Dev. Co. v. American Empire Surplus Lines Ins. Co., 301 Ga. App. 65, 67 (1) (a) (686 SE2d 855) (2009); Commercial Union Ins. Co. v. Bradley Co., 186 Ga. App. 610, 613 (2) (367 SE2d 820) (1988).

We express no opinion regarding the scope of the rights, if any, McCoy may derive through a Covered Party under the circumstances of this case. In its motion to dismiss, for example, the Department stated that its motion was based on the ground of sovereign immunity only and that it was not conceding other possible defenses, such as lack of coverage for the state employee or failure to fulfill statutory or contractual requirements. Moreover, OCGA § 45-9-1 (a) applies to the extent a covered employee is not “immune from liability against personal liability,” and there has been no determination of this issue. We conclude, however, that the trial court erred in granting the Department’s motion to dismiss because McCoy’s complaint sufficiently establishes her standing to sue under the Agreement.

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

       “Because a motion to dismiss on sovereign immunity grounds is based upon the trial court’s lack of subject matter jurisdiction, the trial court is entitled to make factual findings necessary to resolve the jurisdictional issue.” (Citations omitted.) Id. at n. 1. When the trial court determines the jurisdictional issue based upon conflicting facts, we review the trial court’s determination under the any evidence rule. Id. Here, the trial court did not review evidence or make factual findings, and as such, we assume the truth of the allegations in McCoy’s complaint for purposes of this appeal. See Bd. of Regents of Univ. System of Ga. v. Brooks, 324 Ga. App. 15, 16, n. 2 (749 SE2d 23) (2013).

       The Department asserts in its brief that only two former DFCS employees were named as defendants in the Rabun County complaint and that one of them was dismissed from the action. The Department further asserts that the jury awarded damages after a default judgment was entered against the remaining defendants on the RICO and malicious prosecution claims. As stated above, we assume the truth of McCoy’s allegations for purposes of this appeal, and in any event, the Department does not dispute the amount of the judgment or that it was entered against at least one former DFCS employee.

       State employees are protected by official immunity pursuant to Article I, Section II, Paragraph IX (d) of the state constitution, which sets forth the limited circumstances in which state employees may be subject to suit or liability as follows:
      Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.
      Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d).

       See, e.g., Grange Mut. Cas. Co. v. Snipes, 298 Ga. App. 405, 408-409 (2) (680 SE2d 438) (2009) (additional insured and its employee who filed third-party complaint against insurer were entitled to summary judgment on issue of entitlement to coverage and defense under commercial general liability policy); Southern Gen. Ins. Co. v. Boerste, 195 Ga. App. 665 (394 SE2d 566) (1990) (estate of insured entitled to summary judgment in declaratory judgment action seeking declaration regarding right to defense and coverage under aviation liability policy).

       The Department has not argued that this clause limits the rights of employees who are Covered Parties under the Agreement. Rather, it asserts in its brief that “the purpose of [the Agreement] is to protect defendant employees who were sued while performing their duties.”


text:
    A13A2060.
    ASKEW v. THE STATE.
    (755 SE2d 283)
   Miller, Judge.

Following a stipulated bench trial, Duke Askew was found guilty of possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)), possession of marijuana withintent to distribute (OCGA § 16-13-30 (b)), attempting to elude a police officer (OCGA § 40-6-395 (a)), and a stop sign violation (OCGA § 40-6-72). Askew appeals from the judgment on his conviction and sentence, contending that the trial court erred in denying his motion to suppress evidence obtained from his car during a traffic stop. We discern no error and affirm.

Viewed in the light most favorable to Askew’s conviction, the evidence shows that at 10:30 a.m. on December 30, 2011, a Georgia state trooper observed Askew driving in Hancock County while he was not wearing a seatbelt. The trooper turned on his patrol car lights to initiate a stop. Askew turned right without stopping at a four-way stop sign, and the trooper accelerated and turned on his sirens. Askew continued driving, accelerating and making two turns, after which the trooper pulled alongside Askew’s vehicle to ensure that he was seen. Despite these attempts, Askew continued driving, making three additional turns before stopping on a dead-end road in a rural area. The trooper’s pursuit lasted approximately one minute and fourteen seconds, during which time the trooper called for backup.

Before Askew had completely stopped his vehicle, the front and rear passenger side doors flew open, and Askew’s two passengers ran from the vehicle into the adjacent woods. Askew then threw open his door as the trooper approached with his gun drawn. The trooper pulled Askew from the car, pressed his head against the ground, handcuffed him, frisked him for weapons and placed him in the back of his patrol car. The trooper then spoke with a resident of one of the houses on the street, who indicated that she did not know the people in the car. The trooper searched the back of Askew’s vehicle, removing clothing, two brooms, shoes and miscellaneous papers.

Two minutes after the trooper began his initial search, a Hancock County sheriff’s deputy arrived to assist in the search of Askew’s vehicle. As the trooper continued searching the back of the car, the deputy leaned into the vehicle from the open passenger door and observed in plain view “plastic bags sticking out on the driver’s side of the seat... in between the driver’s seat and the console.” The deputy retrieved the bags, which contained crack cocaine and marijuana.

In his sole enumeration of error, Askew contends that there was insufficient evidence to show that the search of his car was conducted as a valid exception to the warrant requirement of the Fourth Amendment. We disagree.

[W]b.en a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based on conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures.

(Citation and footnote omitted.) Miller v. State, 288 Ga. 286 (1) (702 SE2d 888) (2010); see also Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013).

Under OCGA § 17-5-30 (b), the State has the burden of proving the legality of a search and seizure pursuant to a defendant’s motion to suppress. State v. Haddock, 235 Ga. App. 726, 728 (510 SE2d 561) (1998). “[T]he Fourth Amendment proscribes all unreasonable searches and seizures, and searches conducted without prior judicial approval are per se unreasonable under the Fourth Amendment, subject to specifically established and well-delineated exceptions.” State v. Nesbitt, 305 Ga. App. 28, 31 (699 SE2d 368) (2010). Among the exceptions to the warrant requirement are a search incident to a valid arrest and an inventory search of a vehicle pursuant to lawful impoundment. Grimes v. State, 303 Ga. App. 808, 812 (1) (b) (695 SE2d 294) (2010) (searches incident to arrest and inventory searches provide two alternative means for finding that a particular search was unreasonable). See also State v. Heredia, 252 Ga. App. 89, 91 (3) (555 SE2d 91) (2001).

In the interests of public safety and as part of what the Court has called “community caretaking functions,” automobiles are frequently taken into police custody. The police may inventory the contents of a vehicle that has been lawfully impounded, but they may not use an impoundment or inventory as a medium to search for contraband. The individual’s right of privacy is superior to the power of police to impound a vehicle unnecessarily.

(Citation and punctuation omitted.) State v. Carter, 305 Ga. App. 814, 817 (2) (701 SE2d 209) (2010).

The ultimate test for the validity of the police’s conduct in impounding a vehicle is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment. The determinative inquiry, therefore, is whether the impoundment was reasonably necessary under the circumstances, not whether it was absolutely necessary. A police seizure and inventory are not dependent for their validity upon the absolute necessity for the police to take charge of property to preserve it.

(Punctuation and footnote omitted.) Carlisle v. State, 278 Ga. App. 528, 529-530 (629 SE2d 512) (2006). See also Humphreys v. State, 287 Ga. 63, 77 (7) (694 SE2d 316) (2010) (test for lawful impoundment is whether, under the circumstances, the officer’s conduct in impounding the vehicle was reasonable within the meaning of the Fourth Amendment). Further, “[p] olice officers are not required to ask whether an arrestee desires to have someone come and get the car, nor are they required to accede to an arrestee’s request that they do so.” (Citations omitted.) Johnson v. State, 268 Ga. App. 867, 868 (602 SE2d 876) (2004).

Here, Askew’s car was stopped in a residential, dead-end road, and there was no obvious person to take possession of it. The owner of the vehicle was not present, Askew’s companions had fled, and the closest neighbor told the trooper that she did not recognize Askew or the car. Although Askew relies heavily upon this Court’s decision in Canino v. State, 314 Ga. App. 633, 639-641 (725 SE2d 782) (2012), to argue that the impoundment was not reasonable, his argument is unavailing. In Canino, we found impoundment to be unreasonable because the facts showed that the car was legally parked, and the officers made no effort to determine whether one of the defendant’s friends could remove the car, or whether the defendant wanted to make alternative arrangements. 314 Ga. App. at 641 (3). Therefore, this case is squarely distinguishable from Canino. Id. Based on the information available to the officers at the scene as set forth above, the decision to impound the vehicle was reasonable. See Wiley v. State, 274 Ga. App. 60, 61 (1) (616 SE2d 832) (2005) (reasonable to impound U-Haul truck where officer on scene could not allow driver to continue driving and only authorized driver of the truck had a suspended driver’s license).

Having determined that impoundment was not unreasonable, we now turn to the inventory search in question. See Capellan v. State, 316 Ga. App. 467, 469 (729 SE2d 602) (2012) (considering validity of impoundment prior to reasonableness of the inventory search).

The United States Supreme Court has held that an inventory search may be “reasonable” under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause. In this respect, an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence, but instead the policy or practice governing inventory searches should be designed to produce an inventory. Pursuant to these principles ... the first purpose of an inventory search is the protection of the owner’s property while it remains in police custody and the second purpose is the protection of the police against claims or disputes over lost or stolen property.

(Citation, punctuation and footnote omitted.) Grizzle v. State, 310 Ga. App. 577, 580 (2) (713 SE2d 701) (2011). “[IJnventories conducted by the police pursuant to standard police procedures are deemed to be reasonable under the Fourth Amendment.” (Punctuation and footnote omitted.) Id. at 579 (1).

Decided March 12, 2014

Reconsideration denied April 8, 2014.

Martin L. Fierman, Stephen R. Morris, for appellant.

Fredric D. Bright, District Attorney, Reginald L. Bellury, Assistant District Attorney, for appellee.

Here, the record contains sufficient evidence about the police department’s policy on inventory searches. The trooper who initiated the inventory search testified at the hearing on the motion to suppress that once the decision to impound is made, it is the policy of the department to inventory the vehicle according to standard police procedure in order to protect the violator and the police. In so doing, the trooper completed a standard inventory form, listing all items of value found in the vehicle other than the contraband. The ziplock bags containing marijuana and cocaine were found in plain view during the inventory search, and the removal of the bags from the console was not unreasonable. State v. Evans, 181 Ga. App. 422, 424 (2) (352 SE2d 599) (1986). Because the impoundment in question was reasonable and there is evidence to support the trial court’s finding that the search was conducted pursuant to standard police procedure, the trial court’s denial of the motion to suppress will not be disturbed on appeal. See Grizzle, supra, 310 Ga. App. at 579 (1).

Accordingly, we affirm.

Judgment affirmed.

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

       The Court of Appeals denied the application for interlocutory appeal pursuant to the trial court’s denial of Askew’s motion to suppress.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The search in this case cannot he justified as a search incident to arrest. The United States Supreme Court has limited this exception to situations where “the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.’’Arizona v. Gant, 556 U. S. 332, 351 (VI) (129 SCt 1710, 173 LE2d 485) (2009); see also Boykins v. State, 290 Ga. 71, 72 (2) (717 SE2d 474) (2011) (without offering any evidence as to appellant’s physical location after his arrest and placement in custody, State failed to meet its burden of proving the search incident to arrest exception to the warrant requirement).
      In the instant case, the State does not argue that the search was permissible as a search incident to arrest and Askew contends that the exception does not apply. Although our focus is limited to the inventory exception to the warrant requirement, a review of the record shows that Askew is correct, because at the time of the search, Askew was handcuffed and in the hack of a police car, completely unable to access his vehicle. See Canino v. State, 314 Ga. App. 633, 639 (2) (725 SE2d 782) (2012) (search improper despite driver’s close proximity to car because driver was in handcuffs during the search). Consequently, the search in question cannot be justified as a search incident to arrest.


text:
    A13A2252.
    FOUCH v. BICKNELL SUPPLY COMPANY et al.
    (756 SE2d 682)
   Miller, Judge.

Enrico Fouch was diagnosed with silicosis and ultimately received a double-lung transplant due to his overexposure to silica sand while he worked for approximately 11 years as a sandblaster. Fouch subsequently filed suit against Mine Safety Appliances Company, Bicknell Supply Company, and Miles Supply of Elberton, Inc. (collectively, “the Defendants”), who manufactured or supplied safety equipment that Fouch used while sandblasting. Fouch alleged strict liability for defective design and negligent failure to warn against the Defendants. The trial court granted the Defendants’ motions for summary-judgment, concluding that Fouch’s claims against Mine Safety Appliances or Bicknell Supply failed as a matter of law because he did not establish that they proximately caused his injuries. Specifically, the trial court found that Fouch failed to present evidence showing the amount of exposure he experienced while using these defendants’ products. The trial court also concluded that all of the Defendants were entitled to summary judgment on Fouch’s failure-to-warn claim because they did not have a duty to warn Fouch of the known risks associated with sandblasting.

Fouch appeals from the trial court’s ruling, contending that the trial court erred in concluding that, in order to establish proximate cause, he was required to show the actual quantity of respirable silica he was exposed to while wearing the Defendants’ products. Fouch also contends that the trial court erred in concluding that the Defendants did not have a duty to warn him of the dangers posed by sandblasting. For the reasons that follow, we reverse.

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. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

(Citations, punctuation and footnote omitted.) MCG Health v. Barton, 285 Ga. App. 577, 578 (647 SE2d 81) (2007).

So viewed, the evidence shows that Fouch worked as a sandblaster in the granite industry in Elberton, Georgia from 1996 to 2007. During that time, Fouch worked for two companies: Majestic Granite from 1996 to January 1999 and Superior Granite from January 1999 to October 2007.

At Majestic Granite, Greg Dubose taught Fouch how to sandblast and gave limited instruction on what protective gear Fouch could use for sandblasting. According to federal regulations dealing with respiratory protection, the only acceptable respirator to be used during abrasive sandblasting is the Type CE air-supplied respirator with a blast hood or helmet as part of the respirator unit (hereinafter an “air-supplied hood”). Dubose did not instruct Fouch that it was necessary to sandblast in an air-supplied hood, and neither of them used an air-supplied hood while sandblasting. Instead, Fouch and Dubose sandblasted while using a nonair-supplied canvas hood and either a paper mask or an air-supplied respirator underneath the hood. Every time Fouch sandblasted in an enclosed sandblasting room, he wore the nonair-supplied hood and an air-supplied respirator. Fouch knew that it was harmful to inhale the dust caused from sandblasting and that he had to wear respiratory equipment to protect against this hazard. Fouch stated that, while at Majestic Granite, the respirator he used was cleaned only a few times and he was never given an air-supplied hood.

At Majestic Granite, Fouch used several different types of sand, and he remembered seeing warning labels on the front of those bags about the need to avoid inhalation of the dust caused by sandblasting. Fouch, however, did not remember reading the language contained in those warning labels that prolonged exposure to crystal and silica had been shown to induce silicosis.

Majestic Granite purchased its respiratory equipment, including the nonair-supplied hoods, and sand from Miles Supply. The canvas hood contained a warning label advising that the hood did not provide respiratory protection, and only NIOSH-approved respirators should be used when sandblasting. Majestic Granite also purchased sand and equipment, including canvas hoods, from Bicknell Supply. Majestic Granite had a Dustfoe 66 respirator, which was manufactured by Mine Safety Appliances. The record contains no evidence of any discussions about what equipment Majestic Granite should purchase.

In January 1999, Fouch left Majestic Granite and began working for Superior Granite. Superior Granite provided Fouch with various types of respiratory protection — a paper dust mask, a nonairsupplied hood, an air-supplied respirator, and a nonair-supplied respirator. At first, Fouch used an air-supplied respirator, but subsequently he refused to wear it because the air flowing into the mask stung his eyes and smelled bad. When confronted by his supervisor, Charles Worley, Jr., Fouch explained his reasons for not wearing the mask, and Charles Worley offered to buy a new respirator and instructed Fouch to select one from a catalogue. Around the same time, Superior Granite asked Fouch to sign a “Waiver of Responsibility,” indicating that he understood that exposure to sandblasting dust could be harmful to his health, the failure to wear respiratory protection could cause illness, that the equipment provided by Superior Granite would provide adequate protection, and he would hold Superior Granite harmless for his decision not to wear the equipment provided.

Fouch then selected and Charles Worley bought for Fouch a Dustfoe 66 respirator. Charles Worley believed that he first contacted Bicknell Supply to purchase the respirator, and when they did not have it, he went to Miles Supply. The Dustfoe 66 was later replaced with another unit and then with a Dustfoe 88 respirator. Eventually, Superior Granite replaced the Dustfoe 88 respirator with an air-supplied respirator.

Fouch used the Dustfoe respirators primarily for sandblasting, but he also used the Dustfoe during cleanup, shoveling, and sweeping of sand. Fouch wore three different Dustfoe respirators for a total period of approximately two years at Superior Granite. The Dustfoe respirators were not air-supplied, nor did they contain warnings that they were unfit for use in sandblasting.

Charles Worley had told Fouch of the dangers of sandblasting, and Worley testified that sandblasting with silica sand would not be a problem if the sandblaster wore respiratory protection, which, according to him, amounted to an air-supplied respirator and a mask. Charles Worley testified that Superior Granite primarily bought sand and respiratory equipment from Bicknell Supply and Miles Supply and that these suppliers sent salesmen to the job site. Business invoices reveal that Superior Granite purchased nonairsupplied hoods for sandblasting from both Bicknell Supply and Miles Supply. Miles Supply and Bicknell Supply never warned or advised Charles Worley as to what equipment he should use to protect a sandblaster, including the fact that an air-supplied hood was required for sandblasting in a sandblast room.

In late 2006 and early 2007, Fouch began having trouble breathing, had chest pains, began wheezing, and became easily fatigued. When the problems continued, Fouch quit his employment at Superior Granite in October 2007. In January 2008, Fouch was diagnosed with silicosis as a result of his work as a sandblaster, and he subsequently received a double-lung transplant. Fouch then filed the instant lawsuit.

Fouch identified three experts in support of his product liability and negligent failure to warn claims, all of whom were deposed: Dr. Vernon Rose is a certified industrial hygienist, a certified safety professional, and a professional engineer who worked for NIOSH in the 1970s; Dr. Edward Karnes is a human factors and warnings expert; and Darrell Bevis is an industrial hygienist who specializes in respiratory protection.

Dr. Rose specifically testified that nonair-supplied sandblasting hoods should have never been sold because “they essentially provide no protection against the inhalation of respirable silica airborne particles.” Dr. Rose opined that the nonair-supplied hoods would be misusedbecause workers would mistakenly think they were adequately protected and would be more willing to do hazardous work.

According to Dr. Rose, certain studies — such as the Boeing Study — revealed that individuals wearing a nonair-supplied hood are exposed to respirable silica at levels far exceeding the permissible exposure limit. These studies further found that small employers are not aware or do not fully appreciate the hazards of sandblasting or the potential for developing silicosis as a result of sandblasting. The Boeing Study has been publicly available since the early 1970s and would have been readily available to manufacturers and suppliers of sandblasting equipment, like the Defendants. Bevis testified that small sandblasting companies, like Fouch’s employers, rely on manufacturers and suppliers of sandblasting products to provide accurate and complete information about their products.

According to Bevis, both Miles Supply and Bicknell Supply make incorrect and highly improper representations in their catalogs. Specifically, Miles Supply’s catalogue referenced the nonair-supplied hood as a “sandblast hood,” which in Bevis’s opinion would lead small employers to believe they were buying proper respiratory equipment. Similarly, Bicknell Supply’s advertisement of the canvas hood indicated in its catalogue that the nonair-supplied hood was not respiratory protection and must be used with proper respiratory protection. Bevis opined that the representations made by Bicknell Supply and Miles Supply were improper because employers and employees could reasonably believe that using a respirator under the canvas hood would provide proper respiratory protection.

Dr. Karnes opined that neither Fouch nor his supervisor at Superior Granite, Charles Worley, had sufficient knowledge to appreciate the hazards of sandblasting. Dr. Rose believed that manufacturers and suppliers had a major responsibility to ensure that workers had the proper information and proper respiratory equipment, and that the nonair-supplied hoods should be accompanied by a warning label specifically stating that the hood is not to be used when sandblasting.

Based on his experience, Dr. Rose testified that if Fouch wore a nonair-supplied hood with a Dustfoe respirator while sandblasting, Fouch would have been overexposed to respirable silica. According to Dr. Rose, this overexposure would contribute to the development of a respiratory disease. Both Dr. Rose and Bevis opined that Fouch was overexposed to respiratory silica due to the improper respiratory protection he was provided.

1. Fouch contends that the trial court erred in granting summary judgment to Mine Safety Appliances and Bicknell Supply on proximate cause grounds. We agree.

Regardless of whether the plaintiff proceeds under a theory of negligence or strict liability, a plaintiff must prove as part of his case that the defendant’s product was the proximate cause of the injuries alleged. See John Crane, Inc. v. Jones, 278 Ga. 747, 751-752 (604 SE2d 822) (2004); Talley v. City Tank Corp., 158 Ga. App. 130, 134 (3) (279 SE2d 264) (1981). “As a general rule, issues of causation are for the jury to resolve and should not be determined by a trial court as a matter of law except in plain and undisputed cases.” (Citation omitted.) Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. 1, 3 (1) (535 SE2d 545) (2000).

In cases involving toxic chemicals, a plaintiff must offer proof of general causation —• that exposure to a substance is capable of causing a particular injury or disease — and proof of specific causation — that exposure to a substance under the circumstances of the case contributed to his illness or disease. See Butler v. Union Carbide Corp., 310 Ga. App. 21, 25 (1) (712 SE2d 537) (2011); Fulmore v. CSX Transp., 252 Ga. App. 884, 891 (1) (557 SE2d 64) (2001), overruled on other grounds, Norfolk & Western R. Co. v. Ayers, 538 U. S. 135, 151 (III) (B), n. 11, 157 (III) (C) (123 SCt 1210, 155 LE2d 261) (2003). While proving both types of causation involves a question of the concentration levels of the toxin to which the plaintiff was exposed, there is no specific requirement that the plaintiff show specific air measurement readings or dosage amounts in order to establish causation. See Fulmore, supra, 252 Ga. App. at 892 (1). Rather, in toxic tort cases, proof of causation generally requires reliable expert testimony which is “based, at the least, on the determination that there was a reasonable probability that the negligence caused the injury. [T]he testimony must show at least a probable cause, as distinguished from a mere possible cause.” (Citations, punctuation and footnote omitted.) Rodrigues v. Georgia-Pacific Corp., 290 Ga. App. 442, 444 (661 SE2d 141) (2008) (emphasis supplied); see also Fulmore, supra, 252 Ga. App. at 892 (1) (in toxic tort cases, expert testimony is generally required to establish causation).

In a case such as this involving multiple tortfeasors, an individual tortfeasor’s conduct need only constitute a contributing factor, not a “substantial” factor, in the injury in order for the tortfeasor’s conduct to be considered a proximate cause. See John Crane, supra, 278 Ga. at 748-751; Thompson v. Thompson, 278 Ga. 752, 753-754 (605 SE2d 30) (2004). Just as there may be more than one proximate cause of an injury in cases involving the concurrent negligence of several tortfeasors, see Walker v. Giles, 276 Ga. App. 632, 643 (2) (624 SE2d 191) (2005), there is no requirement that a defendant’s products be the sole cause in order to establish proximate cause. See Fulmore, supra, 252 Ga. App. at 894 (1).

In this case, it is undisputed that as a result of his sandblasting employment, Fouch contracted silicosis, which by definition, results only from an overexposure to silica. OCGA § 51-14-3 (22) (“Silicosis means nodular interstitial fibrosis of the lung produced by inhalation of silica.”) (punctuation omitted). As a result, Fouch did not have to establish that he was exposed to a specific threshold level of silica necessary to induce silicosis. See Fulmore, supra, 252 Ga. App. at 892 (1) (“As the only purpose of the [threshold level of exposure value (TLV’)] is to determine at what level exposure to asbestos becomes dangerous, the existence of asbestosis renders moot the inquiry as to how many doses it takes to cause the disease. If that is not true, then the theory upon which the TLV is established is not true.”).

It is also undisputed that the only acceptable respirator to be used during abrasive sandblasting that was primarily involved in this case is an air-supplied hood. Moreover, the undisputed evidence showed that Fouch did not wear the required respiratory equipment during his employment with Majestic Granite and Superior Granite. At Majestic Granite, Fouch sandblasted while using a canvas, nonairsupplied hood and either a paper mask or an air-supplied respirator underneath the hood. The canvas hoods were supplied, in part, by Bicknell Supply. At Superior Granite, Fouch wore three Dustfoe respirators that were manufactured by Mine Safety Appliances.

Fouch’s experts — Dr. Rose and Bevis — testified that, based upon the Boeing Study that had been available since the 1970s, Fouch was overexposed to respirable silica because the study showed that respirable silica levels far exceeded the permissible limit when wearing nonair-supplied hoods. According to Dr. Rose, this overexposure would contribute to the development of a respiratory disease.

In Fulmore, the plaintiffs’ experts testified that the plaintiffs’ exposures to visible dust from the use of asbestos-containing products exceeded the permissible threshold values. Fulmore, supra, 252 Ga. App. at 890-891 (1). Like Fulmore, the expert opinions in this case were not challenged. See id. Indeed, Mine Safety Appliances conceded that the expert opinions were admissible and undisputed for purposes of summary judgment. While the trial court in this case did not specifically strike the experts’ testimony, it erred to the extent it discounted the experts’ testimony without conducting a thorough Daubert analysis. See United States v. Frazier, 387 F3d 1244, 1260 (III) (A) (11th Cir. 2004) (in considering the admissibility of expert evidence, the trial court is required to conduct an exacting analysis of the foundations of expert opinions to ensure they meet the standards for admissibility); OCGA § 24-9-67.1 (f) (2012) (providing that in interpreting and applying the Code section governing the admissibility of expert witnesses, the courts of this State may draw from the opinions of federal courts applying the Daubert standards). Additionally, the expert opinions in this case relied upon a study that demonstrated that Fouch, given the respiratory equipment he used, was overexposed to a toxic chemical, namely respirable silica, at a level that exceeded the permissible limits. As discussed in Fulmore, supra, 252 Ga. App. at 892 (1), the only purpose of an exposure limit is to determine at what level a toxic chemical becomes dangerous, and the existence of an illness caused by exposure to the toxic chemical “renders moot the inquiry as to how many doses it takes to cause the disease.” Given that Fouch presented some expert evidence of specific causation, the trial court erred in granting summary judgment on this ground.

Contrary to the assertions by Bicknell Supply and Mine Safety Appliances, this Court’s decision in Butler, supra, does not compel a different result. In Butler, the trial court, after conducting a rigorous Daubert analysis, as distinguished from the lack of such analysis in this case, struck the opinion of a proffered expert because he relied upon an untested theory that any exposure to asbestos would contribute to the development of mesothelioma; relied upon a study that was not limited to the type of asbestos involved in the case; and overestimated the amount of asbestos to which the plaintiff had been exposed. Butler, supra, 310 Ga. App. at 24, 25-28 (1). This Court held that the trial court did not abuse its discretion in striking the expert’s testimony, id. at 29 (1) (d), and then affirmed the grant of summary judgment to the defendant because “[ajbsent reliable expert testimony that exposure to [the defendant’s] product contributed to the development of [the plaintiff’s] mesothelioma, there is insufficient evidence to create a jury issue as to causation.” (Footnote omitted.) Id. at 30 (2). Contrary to the trial court’s reading of Butler, however, this Court did not hold that a plaintiff must establish the specific amount of exposure to a toxic chemical in order to prove specific causation. In fact, Butler noted this Court’s decision in Fulmore, but distinguished it because the expert opinions in Fulmore, like the case here, were not excluded. See Butler, supra, 310 Ga. App. at 29-30 (1) (d). Therefore, we reverse the trial court’s proximate cause ruling.

Since the trial court granted summary judgment to Mine Safety Appliances on Fouch’s strict liability claim on the ground that he failed to create a factual question on the issue of proximate cause, the grant of summary judgment on the strict liability claim was erroneous, and the claim is, therefore, still viable. We need not discuss Fouch’s arguments on the matter any further. Consequently, we reverse the trial court’s grant of summary judgment on the strict liability claim against Mine Safety Appliances.

2. Fouch also contends that the trial court erred in finding that the Defendants had no duty to warn him or his employers of the dangers posed by sandblasting with their products. We agree that questions of fact remain on this issue.

Under Georgia law, “the manufacturer of a product which, to its actual or constructive knowledge, involves danger to users, has a duty to give warning of such danger.” (Citations and punctuation omitted.) Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450 SE2d 208) (1994). Similarly, “the distributor of a product which, to its actual or constructive knowledge, involves danger to users has a duty to give warning of such danger at the time of sale and delivery.” (Citations and punctuation omitted.) Farmer v. Brannan Auto Parts, 231 Ga. App. 353, 354 (1) (498 SE2d 583) (1998).

Whether a duty to warn exists depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner.

(Punctuation and footnote omitted.) R & R Insulation Svcs. v. Royal Indem. Co., 307 Ga. App. 419, 427 (3) (705 SE2d 223) (2010).

Nevertheless, a manufacturer or distributor has no duty to warn of a product-connected danger which is obvious or generally known. R & R Insulation, supra, 307 Ga. App. at 427 (3). Under the learned-intermediary rule, “[w]here the product is vended to a particular group or profession, the manufacturer is not required to warn against risks generally known to such group or profession.” (Citation and punctuation omitted; emphasis supplied.) Carter v. E.I. DuPont de Nemours & Co., 217 Ga. App. 139, 140 (456 SE2d 661) (1995); see also Farmer, supra, 231 Ga. App. at 355 (1). A similar rule “applies where it appears that the person using the product should know of the danger, or should in using the product discover the danger.” (Footnote omitted.) R & R Insulation, supra, 307 Ga. App. at 427 (3).

In this case, Fouch admits that he knew of the general risks associated with sandblasting and that he was required to wear respiratory protection. A factual issue remains, however, regarding whether Fouch was aware of the specific risks of using the Defendants’ products. According to the testimony of Fouch’s experts, the Boeing Study — which has been publicly available since the 1970s — revealed that small employers are not aware or do not fully appreciate the hazards of sandblasting or the potential for developing silicosis as a result of sandblasting. Indeed, Fouch’s supervisor at Superior Granite, Charles Worley, wrongly believed that an air-supplied respirator and mask were sufficient respiratory protection against the dangers of sandblasting with silica sand. Similarly, the person who trained Fouch at Majestic Granite wore the same equipment that Fouch did when he sandblasted, which is to say that he did not wear sufficient protection either. Moreover, it is undisputed that Fouch’s employers never supplied the proper equipment — an air-supplied hood, as opposed to an air-supplied respirator — that would have adequately protected Fouch while sandblasting.

Fouch’s industrial hygienist expert, Bevis, testified that small sandblasting companies, like Fouch’s employers, rely on manufacturers and suppliers of sandblasting products to provide accurate and complete information about their products. Fouch’s experts testified that the Defendants’ warnings were inadequate to properly warn Fouch that their equipment should not be generally used for the type of sandblasting Fouch was conducting. In particular, Mine Safety Appliances’ Dustfoe respirators had no warning at all that they were unfit for use in sandblasting. Additionally, although the canvas nonair-supplied hoods and sand bags that were distributed by Bicknell Supply and Miles Supply warned that only NIOSH-approved respirators should be used when sandblasting, Miles Supply’s catalogue referenced the nonair-supplied hood as a “sandblast hood,” which in Bevis’s opinion would lead small employers to believe they were buying proper respiratory equipment. Similarly, the evidence shows that Bicknell Supply’s representation that its canvas hood would provide adequate respiratory protection when used with a respirator underneath was improper according to Fouch’s expert because such a configuration was not adequate under the circumstances in which Fouch sandblasted. Moreover, one catalogue from Bicknell Supply contained no warning stating that the canvas hood did not provide respiratory protection or that proper respiratory equipment must be used with the hood.

Consequently, the trial court’s conclusion that Fouch was charged as a matter of law with the knowledge of the dangers of using the nonair-supplied hoods and respirators is not supported by the facts construed in the light most favorable to him. Additionally, to the extent the Defendants rely upon Stiltjes v. Ridco Exterminating Co., 178 Ga. App. 438 (343 SE2d 715) (1986), aff’d, 256 Ga. 255 (347 SE2d 568) (1986), and other cases to assert that they had no duty to warn Fouch because his employers were learned intermediaries, their argument is unavailing. This Court, while reviewing Stiltjes and other caselaw, has held that no case has ever held “that the manufacturer may always rely on an intermediary to pass along to the ultimate user warnings of dangers inherent in the use of a product.” (Emphasis in original.) Carter, supra, 217 Ga. App. at 142. Rather, under the proper application of the “learned-intermediary doctrine,” a manufacturer’s or supplier’s duty to warn an ultimate consumer, like Fouch, can be discharged by a warning given to an intermediary party under a balancing test of several factors: “the burden of requiring a warning; the likelihood that the intermediary will provide a warning; the likely efficacy of such a warning; the degree of danger posed by the absence of such a warning; and the nature of the potential harm.” (Citation and punctuation omitted.) Carter, supra, 217 Ga. App. at 143; see also Restatement (Second) of Torts, § 388, comment n (1965). This balancing test has not been undertaken in this case, and, as demonstrated above, there are serious questions of fact regarding Fouch’s employers’ appreciation of the hazards of sandblasting and their knowledge as to the proper respiratory equipment to provide their employees. Given this evidence, factual questions exist on the Defendants’ duty to warn Fouch notwithstanding any intermediary. Accordingly, the trial court erred in granting summary judgment to the Defendants.

Decided March 21, 2014

Reconsideration denied April 8, 2014

Brinson, Askew, Berry, Seigler, Richardson & Davis, Norman S. Fletcher, A. Franklin Beacham III, Lee B. Carter, Robert F. Leverett, for appellant.

Hawkins & Parnell, H. Lane Young II, Peter R. York, L. Kristin Brock, Lewis, Brisbois, Bisgaard & Smith, Jay M. Barber, Drew C. Timmons, Swift, Currie, McGhee & Hiers, Douglas A. Bennett, C. Blake Staten, Cowsert & Avery, Matthew A. Moseley, M. Steven Heath, for appellees.

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

       Other named defendants were dismissed from the case.

       Fouch does not challenge the trial court’s ruling that Bicknell Supply and Miles Supply were entitled to summary judgment on Fouch’s strict liability claim based on design defects. There is no dispute that Miles Supply and Bicknell Supply did not manufacture any of the equipment upon which Fouch’s claims are based. Therefore, Bicknell Supply and Miles Supply were entitled to summary judgment on this claim. See OCGA §§ 51-1-11 (b) (1), 51-1-11.1 (a), (b); Farmex Inc. v. Wainwright, 269 Ga. 548, 549 (501 SE2d 802) (1998).

       The warnings stated:
      WARNING LUNG HAZARD
      Use of this product especially for sandblasting requires the use of [Mine Safety Health Administration (“MSHA”)/National Institute for Occupational Safety and Health (“NIOSH”)) approved continuous flow [Type-CE air-supplied hood] in accordance with Federal OSHA regulations contained in 29 CFR 1910.94. All persons associated with sandblasting operations must be adequately trained in the use of, and provided with the appropriate respirator to prevent prolonged inhalation of crystalline silica in excess of the limits set in 29 CFR 1910.1000.
      Prolonged exposure to crystalline silica has been shown to induce silicosis. . . .

       The record also contains a Bicknell Supply catalogue from March 2007 that shows the canvas hood being marketed as a sandblasting accessory and which did not contain a warning that the hood did not provide respiratory protection or that proper respiratory equipment must be used with the hood.

       We note that for certain asbestos and silica claims that accrued after May 1, 2007, a claimant is required to show that exposure to asbestos or silica was a substantial contributing factor in the person’s disease. OCGA § 51-14-3 (17) (B) (ii) (for asbestos claims alleging cancer other than mesothelioma), (18) (B) (i) (for silica-related cancer claims). Fouch’s silica claim was based on progressive massive fibrosis, and the “substantial contributing factor” element is not required for such claims. See OCGA § 51-14-3 (18) (B) (ii).

        Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993).

       OCGA § 24-9-67.1 was repealed on January 1, 2013, coinciding with the effective date of Georgia’s new Evidence Code, and replaced by OCGA § 24-7-702.

       To the extent Fouch may have been responsible for some of his injury due to his failure to wear any respiratory protection at all during some of the time he was employed by Majestic Granite and Superior Granite, he is not necessarily precluded from obtaining relief. Instead, he may be apportioned some share of fault for his own injury. OCGA § 51-12-33 (a).


author: Branch, Judge.

text:
    A13A2280.
    ROBERSON v. McINTOSH COUNTY SCHOOL DISTRICT et al.
    (755 SE2d 304)
   Branch, Judge.

In this negligence action against defendants McIntosh County School District, the District’s employee Shyrl Washington, and its insurer Standard Insurance Company, plaintiff Rita Roberson alleges that Washington failed to advise Roberson adequately as to the conversion of her husband’s group life insurance policy to an individual policy after his retirement but before his death. A trial court granted summary judgment to all three defendants on the ground that Washington was performing a discretionary rather than ministerial duty when she advised Roberson such that defendants were protected from suit by official immunity. On Roberson’s appeal from this holding, we find no error and affirm.

“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). A trial 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). Once the party moving for summary judgment has made a prima facie showing that it is entitled to judgment as a matter of law, the nonmovant must then come forward with rebuttal evidence sufficient to show the existence of a genuine issue of material fact. Weldon v. Del Taco Corp., 194 Ga. App. 174-175 (390 SE2d 87) (1990).

Viewed in favor of Roberson as the nonmovant, the record shows that Joseph Roberson was employed by the McIntosh County School District and was covered under its group life insurance policy. On December 2, 2009, Mr. Roberson became ill and was hospitalized the following week. Shortly afterward, Roberson spoke with Washington, the District’s payroll and benefits manager, about using her husband’s sick days if his medical coverage were to lapse. The District had no specific procedure or policy specifying how Washington was to assist county employees with retirement or insurance planning.

On February 4, 2010, Roberson met with Washington and presented her with an executed power of attorney granting Roberson authority to conduct all of her husband’s affairs. With Washington’s help, Roberson accessed the county’s teacher retirement website and completed the forms necessary to effectuate her husband’s retirement and to obtain his pension and other benefits, including health insurance. When Roberson asked about her husband’s life insurance policy, Washington explained that Roberson would have to convert his group life policy to an individual policy and that this would involve filling out an application and paying a first month’s premium higher than that required under Mr. Roberson’s existing group policy. When Roberson asked what she needed to do to convert the policy, Washington advised her that she did not have an updated premium chart for retired teachers, left a voicemail with another office on the subject, and told Roberson she would mail her the chart when Washington received it. According to Roberson, Washington stressed that it was “imperative” that Roberson accomplish this conversion within 30 days of their meeting. Roberson testified that she knew on and after the date of her meeting with Washington that her husband “did not have long to live” and that his life insurance benefits were needed to pay expenses and the couple’s mortgage.

Roberson never received the updated premium chart from Washington. Although Roberson spoke to Washington twice on the telephone in February about other matters associated with her husband’s retirement, Roberson never asked Washington about the life insurance conversion during these conversations and did not contact Washington or anyone else at the District on the subject after the February 4, 2010 meeting. Moreover, and although Roberson understood that it would have been her responsibility to make payments directly to the insurer under a converted policy, she made no such payments after February 4, 2010. Mr. Roberson died in July of that year.

In August 2011, Roberson brought this action alleging that Washington’s negligence caused her to lose the $150,000 death benefit she would have collected had she successfully converted her husband’s group life insurance policy to an individual policy after his retirement but before his death. All three defendants moved for summary judgment, which the trial court granted. This appeal followed.

1. As a preliminary matter, we note that Roberson has not appealed the grant of summary judgment to Washington in her official capacity and to the District on the issue of their sovereign immunity from suit. Rather, Roberson argues that Washington’s failure to send her the updated premium chart violated a ministerial duty such that Washington herself cannot benefit from official immunity. We disagree.

Under Georgia law, official or qualified immunity is an entitlement not to stand trial rather than a mere defense to liability. The issue of a government employee’s official immunity must therefore be resolved as the threshold issue in a suit against the employee in his personal capacity. See Cameron v. Lang, 274 Ga. 122, 124 (1) (549 SE2d 341) (2001).

The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity. Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption. Under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure. The rationale for this immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.

(Citation and punctuation omitted.) Grammens v. Dollar, 287 Ga. 618, 619 (697 SE2d 775) (2010). Our Supreme Court distinguishes ministerial and discretionary acts in this way:

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

(Citations omitted.) Id. Whether the act of a public official is ministerial or discretionary is determined by the facts relevant to the official act or omission from which liability is alleged to arise. Id. at 620. As this Court has often held, “an action is ministerial only if [a] county creates policy requiring certain actions under certain situations.” Whitfield v. Brown, 318 Ga. App. 391, 393 (734 SE2d 98) (2012), citing Standard v. Hobbs, 263 Ga. App. 873, 876 (1) (589 SE2d 634) (2003).

Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.... In order for the written policy to impose a ministerial duty, the policy must mandate simple, absolute, and definite action and require the execution of a specific task without any exercise of discretion.

(Citation omitted; emphasis supplied.) Grammens, 287 Ga. at 620; see also Hendricks v. Dupree, 311 Ga. App. 96, 99 (1) (714 SE2d 739) (2011).

Here, it is undisputed that no written policy stated the extent of Washington’s general responsibility to assist county employees and their families with retirement decisions, including their insurance needs. As we have repeatedly held, an employee’s responsibilities necessarily involve the exercise of discretion when no written policy describes the extent of those responsibilities. Hendricks, 311 Ga.App. at 99 (1) (supervision of grass cutting was discretionary when done without an “established policy addressing the timing, manner or method of execution of the cutting of the grass”); Perkins v. Morgan County School Dist., 222 Ga.App. 831, 836 (2) (476 SE2d 592) (1996) (granting early dismissal to students was discretionary because “monitoring, supervising, and controlling student activities involve discretionary decisions, even when rules regarding these activities have been promulgated”). Moreover, even if we were to assume that Washington created a reasonable expectation that she would follow up her advisory session with Roberson by sending her an updated version of the life insurance premium chart, there is no suggestion or proof that Washington acted with wilfulness, malice, or corruption when she failed to do so. See Middlebrooks v. Bibb County, 261 Ga. App. 382, 386 (2) (582 SE2d 539) (2003) (summary judgment properly granted to county officers and employees under official immunity when there was no proof that they acted with wilfulness, malice or corruption in their dealings with prison inmates).

Because Washington was performing a discretionary function at all times during her dealings with Roberson, and because Washington did so without wilfulness, malice or corruption, Washington is protected from suit by official immunity. Hendricks, 311 Ga. App. at 99 (1) (county superintendent of roads had official immunity against suit alleging that county was negligent for failing to supervise employees responsible for cutting the grass in front of the concrete culvert struck by plaintiff’s truck); Hemak v. Houston County School Dist., 220 Ga. App. 110, 113 (469 SE2d 679) (1996) (because school principal’s and teacher’s duty to ensure that damaged storm drain grate was properly repaired was discretionary, the principal and teacher were immune from suit arising from plaintiff’s fall through the damaged grate); Middlebrooks, 261 Ga. App. at 386 (2).

2. As we have noted above, Roberson has not asserted any error concerning the trial court’s grant of summary judgment to the District, with the result that the judgment as to the District stands as rendered.

3. Finally, Roberson has not shown either that Standard issued an individual life insurance policy to her husband before his death or that Standard is precluded from raising a defense of noncoverage.

It is undisputed that Mr. Roberson’s coverage terminated no later than March 10, 2010, the effective date of his retirement; that Roberson never applied to convert her husband’s group policy into an individual policy; and that Standard, the District’s insurer, never received any payments from either of the Robersons. Even assuming that Washington was acting as Standard’s agent as to Mr. Roberson, he never became the beneficiary of an individual life insurance policy issued by Standard, and Roberson herself did not take sufficient care to accomplish the transfer to an individual policy. For all these reasons, Roberson cannot show that the trial court erred when it granted Standard summary judgment on its defense of noncoverage. See Smith v. Founders Life Assurance Co., 175 Ga. App. 262, 263 (333 SE2d 5) (1985) (insurer was properly granted summary judgment where there was no evidence that the insurer collected any premium payments from an otherwise eligible employee who died before going back to active work, at which time a new insurance policy would have taken effect; under the “unambiguous” terms of the policy, “the coverage never took effect as to him”); Weston v. Dun Transp., 304 Ga. App. 84, 87-88 (1) (695 SE2d 279) (2010) (affirming grant of summary judgment when evidence showed as a matter of law that plaintiff could have avoided the consequences of a defendant’s negligence by the exercise of ordinary care but failed to do so).

Decided March 14, 2014

Reconsideration denied April 8, 2014

W. Douglas Adams, for appellant.

Smith Moore Leatherwood, Elizabeth J. Bondurant, Kenton J. Coppage, Hall Booth Smith, N. Daniel Lovein, Steven P. Bristol, for appellees.

For these reasons, the trial court did not err when it granted defendants’ motions for summary judgment.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

       Washington testified that although she normally gives a departing employee the appropriate forms for converting a group policy to an individual one, she did not give Roberson such forms because Roberson was interested only in maintaining her health insurance.


text:
    A13A2413.
    DOBSON v. MATT OWENS LOGGING, INC.
    (755 SE2d 374)
   Branch, Judge.

Defendant David Dobson brings this appeal in the wake of a jury’s verdict in favor of plaintiff Matt Owens Logging, Inc. (Owens), which had agreed to buy and cut timber on land owned by Dobson. On appeal from the denial of his motion for judgment notwithstanding the verdict, Dobson argues that the trial court erred when it denied his motion in limine concerning evidence that the parties orally modified their written contract and when it enforced the oral modification as partially performed. We find no error and affirm.

The standard for granting a directed verdict [and] a judgment notwithstanding the verdict are the same. Where there is no conflict in the evidence as to any material issue, and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.

(Citation and punctuation omitted.) South Fulton Med. Center v. Poe, 224 Ga. App. 107, 108 (1) (480 SE2d 40) (1996); see also Aldworth Co. v. England, 281 Ga. 197, 201 (2) (637 SE2d 198) (2006) (a party seeking a judgment notwithstanding the verdict must have moved for directed verdict at trial).

Viewed in favor of the jury’s verdict, the record shows that on December 28, 2009, Owens entered into a written agreement to harvest standing timber on Dobson’s land in Gordon County “on or before February 1, 2011,” in exchange for an advance payment of $85,000. The agreement provided that the “total payment price” for the timber “shall be determined at the prices and tonnage” listed on an attachment to the agreement. The agreement provided that Dobson would grant Owens “a cutting extension if very severe and unusual weather [or] health or equipment problems occur during the period of” the agreement, and that the extension could last for “up to a three month period of time.” The agreement also provided that “[a]fter the initial advance has been covered by receipts[,] [Owens] must issue a check for [any] additional tonnage at least every two weeks to [Dobson],” and that “timber harvesting operations will not take place when soil conditions in marked woodland are usually [sic] wet.” Owens was responsible for using the “very best” land management practices during its operations on the site.

After Owens began work on the property in December 2010, rain and a seven- or eight-inch snowfall in January 2011 led him to the conclusion that additional logging might harm the property and violate the agreement. When Owens asked Dobson for an extension, Dobson agreed on condition that Owens send him “a check for what [Owens] thought the tract would cut, over what [Owens] had already paid him.” The two agreed that in exchange for an extension until “the weather permitted,” Owens would issue a check for $2,000 not required under the written contract. There was no discussion of any end date for this extension. In late January, Owens sent Dobson a check for that amount as well as a request that Dobson confirm a six-month extension in writing. Dobson deposited the check but did not respond to the request for a written confirmation of the six-month extension.

On May 1, 2011, exactly three months after the termination of the contract’s original term, Dobson sent Owens an e-mail that “sufficient time ha[d] passed from February 1 for additional timbering time, so I now want to end timbering on my lands now.” Owens responded that he had been “waiting for dry weather,” having had “an extremely wet spring,” that he had “a lot of money tied up on [Dobson’s] land that [he] need[ed] to get back,” and that Dobson had “never told [Owens] a deadline.” Dobson responded that he had “let this go another full three months until May 1, but that’s it,” and that he had never agreed to any additional extension. At the time Owens ceased operations at the site, he had recouped approximately $38,000 of the $87,000 he had paid to Dobson. Owens later estimated that approximately 130 acres of timber with a mill value of $253,000 remained unharvested on Dobson’s land.

On July 28, 2011, Owens filed suit for breach of contract, unjust enrichment, conversion, fraud, negligent misrepresentation, injunctive relief, and attorney fees. Dobson answered and counterclaimed for breach of contract and property damage. The parties proceeded to trial in September 2012. At the close of his evidence, Owens withdrew his claim for injunctive relief, and the trial court struck the claim for unjust enrichment. At the close of all the evidence, the trial court granted Dobson a directed verdict on the issues of fraud, misrepresentation, and attorney fees. The trial court denied Dobson’s motion for directed verdict on the breach of contract and conversion claims as well as Owens’s motion on Dobson’s counterclaim. The jury returned a verdict in favor of Owens in the amounts of $80,619.92 for breach of contract and $2,000 for conversion, and also found Owens not liable for Dobson’s counterclaim.

Dobson argues that the trial court erred when it denied his motions in limine and for judgment notwithstanding the verdict because any oral modification of the contract was unenforceable under the Statute of Frauds. We disagree.

Under OCGA § 13-5-30 (4), Georgia’s Statute of Frauds, a contract “for sale of lands, or any interest in, or concerning lands” must be “in writing and signed by the party to be charged therewith.” Specifically,

[a] contract to purchase the standing timber upon described land, to be sawed into lumber by the purchaser and sold, and a certain percentage of the proceeds paid to the owner of the land as compensation for the timber, is a sale of an interest in land, and, under the Statute of Frauds, is required to be in writing.

Norman & Griffin v. Shealey, 33 Ga. App. 534 (126 SE 887) (1925).

As Owens points out, however, an oral modification to a written contract subject to the Statute of Frauds may be effective if “the contract as so modified has been acted on or performed by one of the parties.” Scott v. Ryder Truck Lines, 120 Ga. App. 819, 822 (1) (172 SE2d 365) (1969), citing Planters Cotton-Oil Co. v. Bell, 54 Ga. App. 433, 435 (188 SE 41) (1936). This result under the Statute of Frauds comports with the general rule that “a mutual departure from the terms of an agreement results in a quasi-new agreement suspending the original terms of the agreement until one party has given the other reasonable notice of its intent to rely on the original terms.” (Footnote omitted.) Vakilzadeh Enterprises v. Housing Auth. of DeKalb, 281 Ga. App. 203, 206 (635 SE2d 825) (2006), citing OCGA § 13-4-4 (where parties depart from a contract’s “terms and pay or receive money under such departure,” reasonable notice must be given “before either can recover for failure to pursue the letter of the agreement”). “The question whether the parties’ mutual conduct caused a waiver and effected a quasi-new agreement ordinarily is a question for the jury.” (Punctuation and footnote omitted.) Vakilzadeh, 281 Ga. App. at 206.

Here, some evidence authorized the jury to conclude that the purchaser Owens and the seller Dobson orally modified their previous written agreement and that Owens made and Dobson accepted payment as consideration for that modification. Specifically, Owens’s testimony and other evidence authorized the conclusions that Dobson agreed to an indefinite extension until “weather permitted” and therefore beyond the three-month extension authorized under the written contract in exchange for an additional payment of $2,000 and that Dobson was solely responsible for Owens’s failure to work after May 1,2011. Itfollows thatthe trial court didnot err when it admitted evidence concerning the parties’ modification of the written agreement and when it denied Dobson’s motion for judgment notwithstanding the verdict. Scott, 120 Ga. App. at 821-822 (1) (reversing grant of summary judgment to common carrier when movant had not produced evidence to refute nonmovant’s allegations that a contract had been orally modified and partially performed such that the Statute of Frauds was satisfied); Vakilzadeh, 281 Ga. App. at 206 (reversing grant of summary judgment when some evidence showed that purchaser waived objection to contractor’s noncompliance with written provision of contract “without first giving [the contractor] notice of its intent to rely on [the written] provision”).

Decided March 27, 2014

Reconsideration denied April 8, 2014.

J. Lane Bearden, for appellant.

McRae, Stegall, Peek, Harman, Smith & Manning, W. Jordan Knight, Jason B. Sanker, for appellee.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.


author: BARNES, Presiding Judge.

text:
    A12A1872.
    GAULDEN et al. v. GREEN et al.
    (757 SE2d 661)
    Decided April 8, 2014.

      Arnold, Stafford & Randolph, H. Craig Stafford, Tyler Lee Randolph, for appellants.

      Commander & Pound, Theodore E. G. Pound, Kathleen W. Simcoe, Alston & Bird, James C. Grant, Lawrie E. Demorest, Brennan & Wasden, Wiley A. WasdenlII, B. Nicole Smith, Coles Barton, Matthew S. Coles, Weathington Smith, Paul E. Weathington, for appellees.
   BARNES, Presiding Judge.

In Herrington v. Gaulden, 294 Ga. 285 (751 SE2d 813) (2013), the Supreme Court of Georgia reversed the judgment of this Court in Gaulden v. Green, 319 Ga. App. 84 (733 SE2d 802) (2012), and so we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own. Accordingly, we affirm the trial court’s order granting summary judgment in favor of Dr. Bobby L. Herrington on the plaintiff’s claims for professional and ordinary negligence.

Judgment affirmed.

McFadden and McMillian, JJ., concur.