author: MILLER, Presiding Judge.

text:
    A12A1287.
    TYREE v. WESTIN PEACHTREE, INC. et al.
    (735 SE2d 127)
   MILLER, Presiding Judge.

In this premises liability action, plaintiff Sylvia Tyree appeals the trial court’s grant of summary judgment in favor of defendants Westin Peachtree, Inc. and Starwood Hotels and Resorts Worldwide, Inc. (hereinafter “Westin”). Tyree was injured while exiting the Westin hotel when an automatic revolving door allegedly lurched forward, striking her and causing her to fall. Tyree contends that the trial court erred in ruling, as a matter of law, that (1) Westin did not have superior knowledge of any alleged defects in the automatic revolving door and the door was not defective, and (2) Westin did not negligently provide Tyree with false information when the door’s recorded voice instructed her to step forward. After a thorough review, we reverse the trial court’s grant of summary judgment with regard to the issues of whether Westin had superior knowledge of any alleged defects in the automatic door, and whether the door was defective. We affirm the grant of summary judgment to Westin on Tyree’s claim that the door’s recorded voice instruction provided false information.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that on November 16, 2008, Tyree had brunch with her family at the Westin Peachtree Plaza in downtown Atlanta. Tyree had entered the hotel through one of the two automatic revolving doors on the valet parking level of the hotel. When Tyree and her family finished eating, they returned to the valet parking level and exited the hotel via the revolving door near the valet cashier desk, hereinafter referred to as the “south revolving door.” Tyree and her cousin were the last two people to exit the hotel. The south revolving door was not moving when Tyree’s cousin stepped in first. Tyree heard an automated voice say, “please step forward.” As Tyree stepped in, the door suddenly lurched forward, striking the back of Tyree’s left shoulder. The force of the impact knocked Tyree to the ground, and Tyree sustained a fractured right hip, a lump on the back of her head and a bruised shoulder.

The south revolving door was installed in 2001. The south revolving door was approximately fourteen feet in diameter with three wings or door panels. Each door wing had an infrared wing sensor, also known as the “top rail sensor.” The purpose of the wing sensor was to stop the door if someone walking inside the door came within a specified distance of the door wings. The wing sensor was also supposed to stop the door from hitting a person when he stepped into the doorway. The door’s manual provided instructions for daily, weekly, monthly and annual maintenance. The manual required daily checks of the emergency and safety devices and the general operation of the door. The daily check would also involve a walk test to make sure that the wing sensors stopped the door when it should stop, and that the door’s other sensors operated properly. Westin’s personnel were not trained to inspect the hotel’s automatic revolving doors and conducted no daily inspections. Westin did not personally service or maintain the automatic revolving doors and it had no regular maintenance program for the doors. Instead, Westin requested service from third-party contractors, as needed.

Westin conducted planned maintenance on the south revolving door on August 4, 2008, in which a service technician noted that the automatic voice was not working. The technician checked all of the door sensors and found no problems with them at that time. Westin also placed service orders for the south revolving door five times between June 11, 2007 and September 8, 2008. The last service order indicated that the voice on the south revolving door was not working. On September 13, 2008, Westin received a report that a woman was injured when one of the revolving doors on the valet parking level stopped on her toe. On October 4, 2008, Westin received a report that another woman was injured when one of the valet-level revolving doors suddenly stopped while she was walking through the door and the door hit her in the face. No evidence showed that Westin inspected or requested service for the doors between the last date of service, September 8,2008, and the date of Tyree’s injury, November 16,2008.

1. Tyree contends that the trial court erred in ruling that Westin did not have superior knowledge of any alleged defects in the automatic revolving door and the door was not defective as a matter of law. We agree.

“[A]n owner/occupier of land owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk.” (Punctuation and footnote omitted.) American Multi-Cinema v. Brown, 285 Ga. 442, 447 (3) (679 SE2d 25) (2009). To survive Westin’s motion for summary judgment, Tyree had to come forward with evidence showing that Westin had actual or constructive knowledge of the hazard, and that she lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within Westin’s control. See Landrum v. Enmark Stations, 310 Ga. App. 161, 162 (712 SE2d 585) (2011).

Westin argues, and the trial court found, that the south revolving door was an open and obvious condition, and that Tyree had at least equal knowledge with Westin regarding how the door functioned because she successfully traversed the automatic revolving door when she entered the hotel. There are two automatic revolving doors on the hotel’s valet level. Tyree testified that she entered and exited the hotel through the same revolving door. Nevertheless, the specific hazard in this case was an allegedly malfunctioning wing sensor, and it is a plaintiff’s knowledge of the specific hazard which is determinative. See Landrum, supra, 310 Ga. App. at 164 (2); see also Cocklin v. JC Penney Corp., 296 Ga. App. 179, 182 (674 SE2d 48) (2009).

The evidence raised a factual question regarding whether Tyree’s injury was caused by a malfunctioning door sensor. Significantly, there was evidence that the wing sensor malfunctioned, because the wing sensor should have stopped the door from hitting Tyree when she stepped into the door on her way out of the hotel. The evidence did not show as a matter of law that Tyree had equal knowledge of the specific hazard in this case — a malfunctioning wing sensor — because the door did not appear to malfunction when she used it to enter the hotel. The evidence also raised a factual question as to whether Westin had superior knowledge of the alleged defect. Even if Westin had no actual knowledge that the wing sensor was malfunctioning at the time in question, Westin had a duty to inspect its premises to discover possible dangerous conditions and take reasonable precautions to protect invitees, such as Tyree, from foreseeable dangers. See Landrum, supra, 310 Ga. App. at 162 (1); see also Benefield v. Tominich, 308 Ga. App. 605, 607-608 (1) (708 SE2d 563) (2011).

The wing sensors required daily inspections and regular maintenance because they could malfunction at any time. The evidence reflected that Westin did not regularly inspect or maintain the automatic revolving doors, even though Westin knew that the doors could, and in fact did, malfunction without prior warning. Westin’s constructive knowledge of the hazard may be inferred from its lack of a reasonable inspection procedure. Benefield, supra, 308 Ga. at 609 (1); see also Cocklin, supra, 296 Ga. App. at 183. Furthermore, Westin had actual prior knowledge of two recent injuries involving the hotel’s valet-level automatic revolving doors. Although the prior injury reports did not identify the specific door involved in those incidents, the last date of service for the valet-level automatic revolving doors occurred on September 8, 2008, five days before the first prior incident, and no evidence showed that either door was inspected or serviced between September 8,2008 and November 16,2008, the date of Tyree’s injury.

Since the evidence showed that Westin had actual or constructive knowledge of the alleged hazard, the burden shifted to Westin to produce evidence that Tyree’s injury was caused by her own failure to exercise ordinary care. See American Multi-Cinema, supra, 285 Ga. at 445 (2). Westin contends that Tyree was looking at her cousin at the time of her injury instead of the oncoming door. There is a factual dispute, however, based on the evidence. Tyree testified that she was not distracted by anything, would not have stepped into the door if there was no room for her to do so, and did not try to step into the door at the last possible second. Westin points to no evidence and we have found none showing that Tyree failed to exercise ordinary care as a matter of law. It is well settled that

issues such as how closely a particular retailer should monitor its premises and approaches, what retailers should know about the property’s condition at any given time, how vigilant patrons must be for their own safety in various settings, and where customers should be held responsible for looking or not looking are all questions that, in general, must be answered by juries as a matter of fact rather than by judges as a matter of law.

American Multi-Cinema, supra, 285 Ga. at 445 (2). For the foregoing reasons, the trial court erred in granting summary judgment to Westin with regard to the issues of whether Westin had superior knowledge of the alleged defect in the south revolving door, and whether the door was defective.

2. Tyree also contends that Westin negligently provided her with false information when the south revolving door’s automatic voice said, “please step forward.” We disagree.

The Restatement (Second) of Torts § 311 provides that one who negligently gives false information and thereby causes physical harm to another who reasonably relies on that information is liable for such harm. “The essential elements of a claim of negligent misrepresentation are (1) the defendant’s negligent supply of false information to foreseeable persons, known or unknown; (2) such persons’ reasonable reliance upon that false information; and (3) economic injury proximately resulting from such reliance.” (Citation and punctuation omitted.) Home Depot U.S.A. v. Wabash Nat. Corp., 314 Ga. App. 360, 367 (3) (724 SE2d 53) (2012). In the instant case that standard was not met, because no evidence showed that the south revolving door’s automatic message provided false information or caused Tyree’s accident.

Decided November 30, 2012

Reconsideration denied December 13, 2012

Hyatt & Hyatt, John M. Hyatt, A. Thomas Stubbs, for appellant.

Hawkins, Parnell, Thackston & Young, Michael J. Goldman, Brian W. Sprinkle, for appellees.

Judgment affirmed in part and reversed in part.

Ray, J., concurs. Branch, J., concurs in judgment only.

       We note that Tyree’s testimony regarding which door she used when she entered the hotel was equivocal because she later testified that she did not know which door she used when she entered.

       On January 3,2008, the south revolving door malfunctioned and would not stop rotating. On February 7, 2008, a bolt on the center shaft, which held all three wings up, broke and the door stopped rotating.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A12A1292. A12A1315.
    THE MEDICAL CENTER, INC. v. HERNANDEZ et al. HERNANDEZ et al. v. ATLANTA DRYWALL, LLC et al.
    (734 SE2d 557)
   McFADDEN, Judge.

An administrative law judge denied workers’ compensation claims that were based on injuries sustained by two employees who were in a motor vehicle accident while on their way to work. The appellate division of the State Board of Workers’ Compensation and the superior court both affirmed the ALJ’s decision. In Case No. A12A1292, interested party The Medical Center, Inc., which provided medical care to both employees, appeals from the superior court order; and in Case No. A12A1315, employee Celvin Hernandez and the guardian of the dependent children of deceased employee Juan Alvarez-Hilario jointly appeal. Because the superior court correctly ruled that the accident did not arise out of or in the course of Hernandez and Alvarez-Hilario’s employment, we affirm.

1. Accidents going to and from work generally are not compensable.

[I]n reviewing a workers’ compensation award, this [c]ourt must construe the evidence in the light most favorable to the party prevailing before the appellate division. In addition, the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor this [c]ourt may substitute itself as a factfinding body in lieu of the State Board. But erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to a de novo standard of review.

(Citations and punctuation omitted.) Wilkinson County Bd. of Ed. v. Johnson, 317 Ga. App. 565, 565-566 (732 SE2d 765) (2012).

So construed, the evidence shows that Hernandez and Alvarez-Hilario were employed by Atlanta Drywall, LLC, which was a subcontractor for Rightway Drywall, Inc. Near the beginning of January 2010, the two employees began working on a church construction project in Columbus, Georgia. Hernandez and Alvarez-Hilario lived in Savannah and would make the four-hour drive to Columbus early on Monday mornings, work ten-hour days through the week, and then on Saturdays drive back to Savannah to spend the weekends at home. They were paid only for the hours they actually worked on the job site, and were not paid for travel time. While they were in Columbus for the work week, Rightway arranged and paid for their lodging at a local motel, and would later recoup those expenses from Atlanta Drywall.

On the morning of Monday, February 8, 2010, Hernandez and Alvarez-Hilario left their homes in Savannah to drive to work in Columbus. They were passengers in a personal truck driven by a co-worker. When they were approximately five minutes away from the job site, they were involved in an accident, and the truck overturned. Alvarez-Hilario died as a result of the accident, and Hernandez was hospitalized for weeks with serious injuries.

“To be compensable under the Workers’ Compensation Act, an employee’s accidental injury must arise both out of and in the course of his or her employment. OCGA § 34-9-1 (4).” (Citations and punctuation omitted.) Stokes v. Coweta County Bd. of Ed., 313 Ga. App. 505, 507 (722 SE2d 118) (2012). The term “arising out of” refers to some causal connection between the conditions under which the employee worked and the injury. Id. at 508. The words “in the course of” relate to the time, place and circumstances of the accident. Id. “An injury arises in the course of certain employment if the employee is engaged in that employment at the time the injury occurs.” (Citations omitted.) Mayor and Aldermen ofthe City of Savannah v. Stevens, 278 Ga. 166, 166-167 (1) (598 SE2d 456) (2004).

“In general, collisions occurring while employees are traveling to and from work do not arise out of and in the course of employment.” (Citation omitted.) Stevenson v. Ray, 282 Ga. App. 652, 654 (640 SE2d 340) (2006). In this case, Hernandez and Alvarez-Hilario were not yet engaged in their employment at the time of the accident. Rather, they were traveling to the work site when the accident occurred. Thus, as found by the ALJ, appellate division and superior court, the injuries sustained while traveling to work did not arise out of or in the course of their employment.

2. Continuous employment doctrine.

The appellants argue that the injuries should nevertheless be compensable under the continuous employment doctrine. However, their reliance on that doctrine is misplaced.

Under Georgia’s doctrine of continuous employment, more commonly known nationally as the traveling employee doctrine, there is broader workers’ compensation coverage afforded an employee who is required by his employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site. Such an employee is, in effect, in continuous employment, day and night, for the purposes of the Workers’ Compensation Act, and activities performed in a reasonable and prudent manner for the health and comfort of the employee, including recreational activities, arise out of and are in the course of the employment.

(Citations and punctuation omitted.) Ray Bell Constr. Co. v. King, 281 Ga. 853, 855 (642 SE2d 841) (2007).

It is true that the employees in this case were required to lodge and work in Columbus during the work week. Thus, once they had arrived at the job site and begun their duties for the week, barring some deviation for a personal mission wholly foreign to their employment, the continuous employment doctrine very well might have been applicable to Hernandez and Alvarez-Hilario. See Ray Bell, supra at 856-857. However, at the end of each work week, when they left Columbus to return to their homes in Savannah for the weekend, they were no longer performing work duties or being paid by their employer. Thus, at that point, they were off-duty and no longer continuously employed. Any continuous employment coverage for the employees would have resumed only when they were back in the general proximity of the place where they were employed and “at a time [they were] employed to be in that general proximity. [Cit.]” (Punctuation omitted; emphasis supplied.) Ray Bell, supra at 856. As demonstrated by numerous cases, an injury arises out of and in the course of a traveling employee’s employment if he is injured “in performing the duties of his employment.” Aetna Cas. & Surety Co. v. Jones, 82 Ga. App. 422, 426 (61 SE2d 293) (1950). Although Hernandez and Alvarez-Hilario were arguably in the general proximity of the construction site at the time of the accident, it is undisputed that they had not yet arrived at the site and thus had not yet resumed performing the duties of their employment.

Cases which have found injuries to be compensable under the continuous employment doctrine involve employees who, unlike Hernandez and Alvarez-Hilario, were already in the midst of their employment duties for the pertinent time period. For example, in United States Fidelity & Guaranty Co. v. Navarre, 147 Ga. App. 302, 302-303 (248 SE2d 562) (1978), an out-of-town employee, who had to be on his job site from 7:00 a.m. until 5:30 p.m., was staying with other workers at a nearby motel during the week when he was killed at the motel. Since he was lodging close enough to the job site to be able to report to work in the morning, the injury arose out of and in the course of his employment. Id. at 304-305. Likewise, in McDonald v. State Highway Dept., 127 Ga. App. 171, 176-177 (2) (192 SE2d 919) (1972), a judgment denying workers’ compensation coverage was reversed where the employee, who was required to work out of town and stay at a hotel during the week, fell on stairs at the hotel and eventually died from injuries sustained in the fall. And similarly, in Ray Bell, supra, an out-of-state employee living in an employer-provided apartment while working in Georgia was covered by the continuous employment doctrine when, after concluding a personal mission, he was in an accident as he drove an employer-provided vehicle back to either the job site or the apartment.

Conversely, in Mayor and Aldermen of the City of Savannah, supra at 166, the Supreme Court held that an off-duty police officer who was injured in a car accident while on her way to work was not covered by the continuous employment doctrine. The Court did find that the injury arose in the course of her employment because a city policy required her to enforce the law any time she was in the city limits. Id. at 167 (1). However, the Court further held that the injury did not arise out of the officer’s employment and thus was not compensable. The “car accident in this case was in no way related to her work as a police officer. At the time of the accident, she was not actively engaged in any police work nor was she responding to a law enforcement problem. The hazards she encountered were in no way occasioned by her job as a police officer.” Id. at 167 (2).

Similarly, in the instant case, at the time of the accident, Hernandez and Alvarez-Hilario were not engaged in any construction work. The hazards they encountered on the roadway were in no way occasioned by their jobs as construction workers, and since “there was no causal connection between [their] employment and [the] accident, [their] injuries did not arise out of [their] employment.” Mayor and Aldermen of the City of Savannah, supra at 167 (2). Moreover, unlike the officer in Mayor and Aldermen of the City of Savannah, they were not under any sort of 24-hour per day duty to perform their jobs. Rather, as explained above, they were off-duty at the time of the accident and had not yet resumed their work for the week, so their injuries also did not arise in the course of their employment. Accordingly, the superior court correctly affirmed the board’s determination that the injuries, sustained in an accident while the employees were on their way to work, were not compensable.

Decided November 21, 2012

Reconsiderations denied December 13, 2012

Day Crowley, Scott C. Crowley, Bobby L. Scott, Martin H. Drake, for The Medical Center, Inc.

Lawrence L. Bennett, Jr., Stephen D. Payne, Jorge L. Flores, Jr., for Hernandez et al.

Lowendick, Cuzdey, Ehrmann, Wagner, Stine & Sansalone, Stephen Cuzdey, Bryan C. Mahaffey, for Atlanta Drywall et al.

3. Motions to dismiss.

Appellee Rightway Drywall’s motions to dismiss both of the above-styled appeals are hereby denied.

Judgments affirmed.

Barnes, P. J., and Adams, J., concur.


author: Branch, Judge.

text:
    A12A1382.
    OTUWA v. THE STATE.
    (734 SE2d 273)
   Branch, Judge.

On appeal from his conviction for first degree vehicular homicide, driving under the influence (DUI), and reckless driving, Otuwa Otuwa argues that the trial court erred when it denied his request to charge the jury on the lesser included offense of second degree vehicular homicide as to each of the six counts of first degree vehicular homicide against him. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that in the early morning of August 3, 2008, Otuwa was driving at approximately 93 miles per hour down a residential road in Douglas County when he lost control of the car, crashed through a stop sign and a street sign, left the roadway, and rolled over repeatedly. The posted speed limit was 45 miles per hour. Otuwa’s sister and another passenger were ejected from the vehicle and died of their injuries. Otuwa and a third passenger survived without major injury.

Police responding to the scene noted that Otuwa smelled strongly of alcohol and that his eyes were bloodshot and glassy. A preliminary breath test showed that Otuwa had been drinking, and his blood alcohol level was shown to be at least 0.175 grams, nearly twice the legal limit. Otuwa also had a prior arrest for DUI in Illinois. The evidence also showed that Otuwa had not applied his brakes during the eight seconds preceding the crash. In the indictment, Otuwa was charged with a total of nine counts: two counts each of first degree vehicular homicide by less-safe DUI, by per-se DUI, and by reckless driving; and one count each of less-safe and per-se DUI and reckless driving.

At trial, Otuwa filed a written request for a jury charge on the lesser included offense of second degree vehicular homicide by speeding as to each of the six first degree vehicular homicide charges. After an extensive discussion of this request with both counsel on the record before the start of trial, the trial court ruled that it would charge second degree vehicular homicide by speeding as a lesser included offense only as to the reckless driving first degree vehicular homicide counts. It then charged the jury in relevant part as follows:

As to Count 3 and Count 6, which charge the defendant with homicide — I’m going to say first-degree homicide, first-degree homicide by vehicle by causing the death — the deaths of [the victims] while driving a vehicle in reckless disregard for the safety of others, you may consider the lesser included offense of homicide by vehicle in the second degree. As you can see from the indictment, those counts allege that the defendant caused the deaths of these individuals while driving a vehicle in reckless disregard for the safety of other persons or property. If you do not find by a reasonable doubt that the defendant caused these deaths while driving in a reckless disregard—in reckless disregard for the safety of others but do find that he caused these deaths while speeding, then you would be authorized to find the defendant guilty of the lesser offense of homicide by vehicle in the second degree. This instruction does not apply to the other counts of the indictment.

Otuwa preserved his objection to the court’s refusal to provide the charge of second degree vehicular homicide as a lesser included offense of the four other counts of first degree vehicular homicide.

The jury returned a verdict of guilty on all nine charges. As to both first degree counts where second degree vehicular homicide was presented as an option, the jury found Otuwa guilty of first degree vehicular homicide. The jury also returned a guilty verdict on the counts of DUI and reckless driving. The trial court merged the four remaining first degree vehicular homicide counts as well as the underlying DUI and reckless driving counts into two first degree vehicular homicide by less-safe DUI counts.

1. The evidence outlined above was more than sufficient to sustain Otuwa’s conviction for first degree vehicular homicide by less-safe DUI. OCGA § 40-6-393 (a) (defining first degree vehicular homicide as causing “the death of another person” by violating statutes including OCGA § 40-6-391 (the DUI statute)); Jackson, supra.

2. Otuwa’s only argument on appeal is that because the evidence supported a charge on second degree vehicular homicide by speeding, the trial court erred when it refused to charge the jury on this crime as a lesser included offense of all six of the first degree vehicular homicide counts against him. We disagree.

OCGA § 40-6-393 distinguishes between first degree and second degree vehicular homicide according to the severity of the underlying traffic offense. As we explained in Hayles v. State, 180 Ga. App. 860 (350 SE2d 793) (1986):

The act of causing the death of another by commission of a traffic violation is necessary to constitute the crime in either case. The law considers, however, that causing the death by commission of certain traffic violations is attended with more immediate and serious consequences than causing the death by commission of any other traffic offenses; and therefore it is, that a distinction is made in the punishment.

(Citation and punctuation omitted.) Id. at 861 (3). Specifically, first degree vehicular homicide requires a showing that a defendant was either DUI or driving recklessly at the time of a given accident, while second degree vehicular homicide requires only that a defendant committed a less serious traffic offense such as speeding. See OCGA § 40-6-393 (a) (referring to offenses including reckless driving and DUI as prerequisites for first degree vehicular homicide), (c) (referring to a violation of “any provision of this title other than” those specified in subsection (a) as a prerequisite for second degree vehicular homicide).

The trial court cited this Court’s decision in Hill v. State, 285 Ga. App. 503 (646 SE2d 718) (2007), as authority for its decision to accept only Otuwa’s request that the jury be charged on second degree vehicular homicide by speeding as a lesser included offense of the first degree vehicular homicide by reckless driving counts, but to deny his request to charge on second degree vehicular homicide as a lesser included offense of the four first degree vehicular homicide by DUI charges. Like Otuwa, the defendant in Hill was charged with first degree vehicular homicide by both reckless driving and DUI. Id. at 504. As the court in Hill properly noted, if a jury finds a defendant guilty of vehicular homicide and that either DUI or reckless driving — two of the statutory bases that support a first degree vehicular homicide charge — was the cause of the vehicular homicide, then it follows that the defendant “must be guilty of first degree, and not second degree, vehicular homicide.” Id. at 506 (3). In this case, the jury did just that by finding Otuwa guilty of not only vehicular homicide but also reckless driving (not speeding) and less-safe DUI. Accordingly, the jury’s verdict of first degree vehicular homicide was proper. Nor does the abolition of the inconsistent verdict rule, see Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), have any application here when the jury could have returned an inconsistent verdict by finding Otuwa guilty of DUI or reckless driving, not guilty of first degree vehicular homicide, and guilty of second degree vehicular homicide by speeding.

Additionally, and as in Hill, this jury was given the option, which it refused to select, of returning a guilty verdict on second degree vehicular homicide as a lesser included offense based on testimony supporting a conclusion that his rate of speed was not high enough to authorize a finding of reckless driving but sufficient to authorize a finding of speeding. See Hill, supra at 504, 506 (3). As no such option was given in any of the cases Otuwa cites as supporting reversal, these cases are inapposite. See Brown v. State, 287 Ga. App. 755, 758-759 (652 SE2d 631) (2007) (trial court refuses to give any of defendant’s requested charges on second degree vehicular homicide as a lesser included offense of first degree vehicular homicide); Lefler v. State, 210 Ga. App. 609, 610-611 (2) (436 SE2d 777) (1993) (same); Hayles, supra at 862 (3) (same). Taken as a whole, the trial court’s charge authorized the jury to reach the conclusion that Otuwa was guilty of DUI and, at the same time, that speeding rather than DUI was the “sole proximate cause of the collision and of the victim’s death” such that he was guilty of second rather than first degree vehicular homicide. The charge was therefore proper.

Decided November 16, 2012

Reconsideration denied December 13, 2012

Robert W. Chestney, Frank C. Winn, for appellant.

David McDade, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       The trial court also charged speeding as a lesser included offense of reckless driving.

       The jury refused to select the lesser included offense of speeding as to the reckless driving count.


text:
    A12A1418.
    MARTIN v. DEMPSEY FUNERAL SERVICES OF GEORGIA, INC. et al.
    (735 SE2d 59)
   MILLER, Presiding Judge.

Appellant Genevieve Martin sued appellees Dempsey Funeral Services of Georgia, Inc., and Magnolia Landcare Group, Inc., to recover for personal injuries that she allegedly sustained when she slipped and fell while visiting her daughter’s gravesite at Dempsey Funeral’s cemetery. The trial court granted summary judgment in favor of Dempsey Funeral and Magnolia Landcare, finding that the Recreational Property Act, OCGA § 51-3-20 et seq. (“RPA”), precluded Martin’s claims. The trial court alternatively concluded that summary judgment was appropriate since Martin was a licensee and there was no evidence that appellees had breached the standard of care. On appeal, Martin contends that the trial court’s decision was erroneous since (i) a jury question existed as to whether the RPA applied because the cemetery had mixed commercial and recreational uses; (ii) the RPA did not extend to Magnolia Landcare, a nonowner; and (iii) Martin had the status of an invitee, rather than a licensee. We agree that the evidence raised jury questions as to the applicability of the RPA and Martin’s legal status as either an invitee or a licensee. Accordingly, 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. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations omitted.) Carroll v. City of Carrollton, 280 Ga. App. 172, 172-173 (633 SE2d 591) (2006).

So viewed, the record evidence reflects that on October 22, 2008, Martin’s daughter was interred at the Rolling Hills Memory Gardens cemetery, which was owned and operated by Dempsey Funeral. Thereafter, on January 31, 2009, Martin, who was 85 years old, visited the cemetery with the intention of placing flowers at her daughter’s gravesite. As she walked toward the gravesite, Martin slipped and fell. Following the fall, an orange baling twine was observed tangled around Martin’s feet. Martin asserted that the baling twine was a trip hazard that had been negligently left on the ground, and that the baling twine was not easily visible since it was concealed by straw covering the ground.

Magnolia Landcare, a subsidiary of Dempsey Funeral, had performed certain aspects of the care and maintenance of the cemetery, including mowing the grass, trimming near grave markers, and distributing pine and wheat straw to make the cemetery grounds aesthetically pleasing. The pine and wheat straw used on the cemetery grounds was bound by baling twine and was kept in the cemetery’s storage facility. The baling twine that had allegedly caused Martin’s fall had the same color and similar appearance of the baling twine that had been used to bind the cemetery’s pine and wheat straw.

As a result of the fall incident, Martin sustained injuries, including a broken arm and a broken hip. Martin filed the instant lawsuit against Dempsey Funeral and Magnolia Landcare, contending that they had breached their duty of care to keep the cemetery premises safe and to remove debris and trip hazards in the gravesite area.

Dempsey Funeral and Magnolia Landcare denied liability. Following discovery, they jointly filed a motion for summary judgment, arguing that the RPA applied to the suit; Magnolia Landcare owed no duty since it was not an owner or occupier of the cemetery premises; Martin was a licensee on the cemetery premises; and no recovery was allowed since there was no evidence of a wilful or wanton injury. After hearing oral argument from the parties, the trial court granted the motion.

1. Martin contends that the trial court’s grant of summary judgment was improper since the cemetery had mixed commercial and recreational uses, which raised a jury question as to whether the RPA applied. We agree.

In accordance with the statutory provisions of the RPA,
... an owner of land who either directly or indirectly invites or permits without charge any person to use the property for recreational purposes does not thereby:
(1) Extend any assurance that the premises are safe for any purpose;
(2) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed; or
(3) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons.

OCGA § 51-3-23. As an exception, the RPA does not limit liability “[f]or willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activityf.]” OCGA § 51-3-25 (1).

By its plain terms, the RPArequires that the property be used for recreational purposes without charge. See OCGA § 51-3-23. It has been recognized, however, that a property may have mixed commercial and recreational purposes. In this regard, our Supreme Court of Georgia has ruled that “in order for the RPA to apply, it is not necessary that the public be on property for sheer recreational pleasure [,] and that the RPA may apply in situations where commercial interests are mixed with recreational activities.” (Citation and punctuation omitted.) Anderson v. Atlanta Committee for the Olympic Games, 273 Ga. 113, 116 (2) (537 SE2d 345) (2000). Nevertheless, “[i]f the public is invited to further the business interests of the owner — e.g., for sales of food, merchandise, services, etc. — then the RPA will not shield the owner from liability even though the public receives some recreation as a side benefit.” (Punctuation omitted.) Id. To determine the applicability of the RPA, the important criterion is the purpose for which the public is permitted on the property. Id. The Court has adopted a balancing test that must be applied in making this determination, which “requires that all social and economic aspects of the activity be examined. Relevant considerations on this question include, without limitation, the intrinsic nature of the activity, the type of service or commodity offered to the public, and the activity’s purpose and consequence.” (Citation, punctuation and emphasis omitted.) Id. at 117 (2). In applying the balancing test, the factfinder is not limited in its consideration to the facts as they existed at the moment of injury. Atlanta Committee for the Olympic Games v. Hawthorne, 278 Ga. 116, 117 (598 SE2d 471) (2004). Rather, the factfinder may consider a larger time frame and the totality of the circumstances. Id. at 120 (3).

“[Wjhether the RPA applies to limit the liability of the owner of a certain property at a certain time is a question of law for the trial court.” (Citation and punctuation omitted.) Hawthorne, supra, 278 Ga. at 117 (1). However, where the evidence conflicts regarding the purpose of the property, the factfinder must resolve the conflict. Id.

Even where there is no factual dispute over the recreational and commercial activities on the property, summary judgment is improper where a fact question regarding the owner’s purpose is created by objective evidence, such as proof that the owner knowingly obtained, directly or indirectly, financial benefits for the purpose of pecuniary gain from business interests on the property as a result of its decision to invite or permit the public without charge to enter the property.

(Punctuation and footnote omitted.) Butler v. Carlisle, 299 Ga. App. 815, 825 (5) (683 SE2d 882) (2009).

Here, the evidence presents a factual dispute as to whether Dempsey Funeral’s purpose of the property was commercial or recreational.

Dempsey Funeral aptly points to evidence reflecting that the cemetery did not have gates or barriers to limit access; the cemetery was open to the public at all times; and members of the public were permitted to use the cemetery for recreational purposes, such as for picnics, jogging, walking, and walking pets. In this regard, a fact-finder could conclude that the cemetery’s purpose was recreational.

Nevertheless, the evidence also reflected that Dempsey Funeral operated the cemetery as a part of its for-profit business', and sold gravesite and interment rights for the burial of decedents at the cemetery in accordance with its commercial enterprise. Dempsey Funeral was “in the cemetery business” and operated four cemeteries as part of its business. Indeed, Dempsey Funeral was paid for the interment of Martin’s daughter. In addition to purchasing the daugh-' ter’s gravesite, Martin’s son-in-law had also entered into commercial contracts for the purchase of interment rights for himself, his wife, and Martin. The evidence would authorize a finding that family visits to the gravesites were expected and intended activities that were at least implied under the commercial purchases of the interment rights for perpetual care at the cemetery. There was also evidence that would authorize a finding that allowing access for gravesite visits furthered the commercial purposes of the cemetery and provided financial benefits related to the sales of gravesite and interment rights. In this regard, a factfinder could conclude that the purpose of the cemetery was commercial in nature.

In light of the conflicting evidence as to the purpose of the cemetery, reasonable minds could differ as to the conclusion to be reached, and summary adjudication of this issue was improper. See, e.g., Hawthorne, supra, 278 Ga. at 117-118 (1); Butler, supra, 299 Ga. App. at 824-825 (5). Accordingly, “the trial court must submit the issue to the jury to perform the balancing test, considering the totality of the circumstances. Upon the jury’s resolution of the factual issue, the trial court must apply the jury’s finding and determine as a matter of law whether or not the RPA applies to limit [Dempsey Funeral’s] liability in this case.” (Punctuation and footnotes omitted.) Butler, supra, 299 Ga. App. at 825 (5).

2. Martin next contends that the trial court erred in extending the RPA to Magnolia Landcare in this case. In this regard, she contends that the RPA does not apply to Magnolia Landcare since it was not an owner or occupier of the cemetery.

The RPA defines an “owner” as “the possessor of a fee interest, a tenant, a lessee, an occupant, or a person in control of the premises.” OCGA § 51-3-21 (3). In Bourn v. Herring, 225 Ga. 67, 67-69 (1) (a) (166 SE2d 89) (1969), the Court applied the RPA’s liability limitation to both a corporate property owner and the property owner’s general manager/agent. Based upon the pleadings and record evidence regarding Magnolia Landcare’s relationship with Dempsey Funeral and its involvement in the cemetery’s maintenance, liability against Magnolia Landcare could be imposed based upon theories that it acted as Dempsey Funeral’s agent and exercised control of the premises to the extent of its provision of care and maintenance. Cf. id. (concluding that the corporation’s general manager met the RPA’s definition of “owner” to the extent that he served as the corporation’s agent and exercised control of the premises). In this regard, the RPA’s limitation of liability may apply to Magnolia Landcare in the same manner that it may apply to its principal, Dempsey Funeral. Id.

Nevertheless, as explained in Division 1 above, a jury question exists as to whether the RPA applies in this case. Additionally, there remains a question of fact as to whether Magnolia Landcare is an “owner” under the RPA statute. The entry of summary judgment in favor of Magnolia Landcare on this issue was therefore erroneous.

3. Lastly, Martin argues that the trial court erred in finding that she visited the cemetery property as a licensee. Martin contends that instead she should have been classified as an invitee. Since there is conflicting evidence as to which legal status Martin should be conferred, the question must be resolved by a jury.

As the plaintiff asserting a cause of action for negligence, Martin bears the burden of establishing four essential elements:

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

(Citations and punctuation omitted.) Freeman v. Eichholz, 308 Ga. App. 18, 20 (1) (705 SE2d 919) (2011). Alandowner’s legal duty of care owed to a person coming upon the premises varies and is dependent upon the legal status of the person entering the premises. Id. “A landowner owes the highest duty — the duty of ordinary care — to an invitee. OCGA § 51-3-l[.] A landowner owes a lesser duty-—to avoid causing wilful or wanton injury—to a licensee. OCGA § 51-3-2 (b) [.]” (Citations and punctuation omitted.) Id. Thus,

[Martin] ’s status as either a licensee or an invitee determines the duty of care that [Dempsey Funeral owed her]. An invitee is someone whom a landowner, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose. A licensee, on the other hand, is a person
who is neither a customer, a servant, nor a trespasser, who does not stand in any contractual relation with the landowner, and who is permitted to go on the premises merely for her own interests, convenience, or gratification. The generally accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render [her] presence of mutual benefit to both, or was for business with one other than the owner or occupier.

(Punctuation andfootnote omitted.) Ga. Dept. of Corrections v. Couch, 312 Ga. App. 544, 546 (1) (718 SE2d 875) (2011).

This Court has previously held that a person entering a cemetery to attend a funeral has the legal status of an invitee to whom the cemetery owner owes a duty of care in keeping the premises and approaches safe. See Smith v. Poteet, 127 Ga. App. 735, 736 (1) (195 SE2d 213) (1972). However, the legal status of a person who subsequently visits a decedent’s gravesite after the occurrence of a funeral presents a different question, which has not been addressed by Georgia’s appellate courts.

In the instant case, it is undisputed that the purpose of Martin’s visit was to take flowers to her daughter’s grave, not to conduct any business with Dempsey Funeral. Dempsey Funeral argues that it had no business or contractual relationship with Martin. It points to evidence establishing that Martin’s son-in-law executed the contract and purchased the gravesite for Martin’s daughter.

Decided November 29, 2012

Reconsideration denied December 13, 2012.

Barry S. Noeltner, Kelly L. Turner, for appellant.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Steven R. Wilson, for appellees.

Nevertheless, Martin argues that she should be afforded the legal status of an invitee because permitting visitors is simply a part of the business of a cemetery. Martin asserts that when Dempsey Funeral sold the cemetery plot for her daughter’s burial, it extended an implied invitation for friends and families to visit her daughter’s gravesite and that the invitation was clearly tied to the commercial purposes of the cemetery. Significantly, Martin’s son-in-law testified at his deposition that Dempsey Funeral’s manager had helped him select the location for the gravesite, and that he had told the manager he needed a location that was flat and easily accessible so that Martin could visit the gravesite. This testimony would authorize a finding that Dempsey Funeral had notice that Martin would be visiting the gravesite and that her visitation was an important factor considered during the commercial transaction involving the purchase of the gravesite.

Based upon the conflicting evidence as to Martin’s legal status, the question must be submitted to a jury for resolution. See Couch, supra, 312 Ga. App. at 546 (1) (a) (ruling that “[w]hen there is conflicting evidence as to the legal status of the injured party, the question is rightfully left to the jury”) (punctuation and footnote omitted). Consequently, the trial court’s decision granting summary judgment in this case was erroneous.

Judgment reversed.

Ray and Branch, JJ., concur.

       Martin also argues that the RPA does not abrogate the duties imposed upon Dempsey Funeralunderthe Georgia Cemetery and Funeral Services Act of 2000, OCGA § 10-14-1 et seq., and the Rules of the Secretary of State, Ga. Comp. R. & Regs. r. 590-3-1-.01 (2). The trial court’s order, however, did not address this claim. In reaching our appellate decision, we likewise express no ruling as to this claim.

       We note that Dempsey Funeral and Magnolia Landcare have filed a motion for leave to file a sur-reply brief, which was attached as an exhibit to its motion. The motion is hereby granted, and we have considered the sur-reply brief in our resolution of this appeal.

       The majority of the reported decisions of other jurisdictions have concluded that a person visiting a gravesite is an invitee. See Cedar Hill Cemetery v. Ball, 78 F2d 220, 221 (D.C. Cir. 1935) (ruling that a plaintiff was an invitee while visiting the cemetery for the purpose of decorating the grave of her grandchild); Carter v. United States, 2011U. S. Dist. LEXIS 148631, *8 (III) (A) (E.D. Pa. 2011) (providing that the plaintiff was an invitee when she visited her parents’ gravesites at the cemetery); Gaita v. Laurel Grove Cemetery Co., 731 A2d 1245, 1249 (N.J. Super. Ct. Law Div. 1998) (ruling that the plaintiff was a business invitee while she visited a gravesite, “because having visitors come to a grave is an expected and inextricably intertwinedpart of the service of providing the gravesite”); Hetzelv. Buffalo Cemetery Assn., 16AD2d 581, 583 (N.Y. App. Div. 1962) (ruling that the jury would have had the right to find that the injured plaintiff was an invitee when he accompanied his family on a visit to their plot in defendant’s cemetery); Foster v. Harding, 426 P2d 355, 361 (Okla. 1967) (ruling that a plaintiff was an invitee when she went to the cemetery and mausoleum to pay her respects to her relatives there interred). There is a minority view that a visitor to a gravesite is a licensee. See Madison v. Woodlawn Cemetery Assn., 2010 Ohio App. LEXIS 4765 (III) (A) (2) ¶ 24 (Ohio Ct. App. 2010) (ruling that an appellant who visited her uncle’s gravesite at a cemetery was a licensee since there was nothing in the record to demonstrate that the cemetery obtained any economic benefit to the cemetery from appellant’s presence).


author: McFadden, Judge.

text:
    A12A1453.
    BUTLER v. THE STATE.
    (734 SE2d 567)
   McFadden, Judge.

James Butler appeals from his child molestation conviction, raising a claim of ineffective assistance of trial counsel. Because he has failed to show either deficient performance or prejudice, we affirm.

Butler was indicted on two counts of child molestation, one count alleging that he had placed his mouth on the victim’s breast and the other count alleging that he had placed his hand on the victim’s vagina. Butler pled not guilty to the charges, and the case proceeded to a jury trial. At trial, the state presented evidence showing that while an eight-year-old girl was at Butler’s house, he approached her, put his mouth on her breasts and touched her clothed vaginal area. The state’s evidence included photographs showing hemorrhaging or red marks around the child’s breasts, a forensic interview of the victim stating that Butler had touched her breasts, and expert testimony that Butler’s DNA and an enzyme contained in saliva were found on the child’s breasts.

Butler presented a good character defense, introducing testimony from seven witnesses about his good reputation in the community. Butler also testified in his own defense, stating that the child and her grandmother frequently visited his house, and that on the date in question the girl hugged him around the neck and he kissed her on the cheek. Butler denied kissing the child’s breasts or touching her vaginal area, but claimed that the girl kept pulling her shirt up and asking him to kiss it, so he did kiss the shirt. On cross-examination of the state’s experts, Butler also elicited testimony to support the defense theory that saliva and DNA could have been transferred inadvertently from the child’s cheek to her chest.

The jury found Butler guilty of child molestation for having put his mouth on the child’s breast as charged in Count 1 of the indictment, but could not reach a unanimous verdict as to the allegation in Count 2 that he had touched the child’s vagina. The trial court entered judgment of conviction and imposed a 15-year sentence as to Count 1, and declared a mistrial as to Count 2. The court subsequently granted the state’s motion for entry of an order of nolle prosequi as to Count 2.

Butler filed a motion for new trial, claiming ineffective assistance of trial counsel. After a hearing at which both trial counsel and Butler testified, the trial court entered an order finding that counsel’s testimony was more credible than Butler’s testimony and denying the motion. Butler appeals.

Butler argues that the trial court erred in denying the motion for a new trial because his trial counsel was ineffective in failing to properly explain the strength of the evidence against him, which caused him to proceed to trial instead of accepting a plea offer from the state. The argument is without merit.

To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), the defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. In the context of the plea bargain process, a defendant may prove that trial counsel was ineffective by showing that counsel failed to inform him that an offer to plead guilty had been made and failed to advise him of the consequences of the choices confronting him. To establish prejudice in the context of the plea bargain process, the defendant must show that, but for counsel’s deficient performance, there is a reasonable probability that he would have accepted the [sjtate’s plea offer. The requisite reasonable probability standard demands a showing that there is some indication that the defendant was amenable to the offer made by the state.

(Citations and punctuation omitted.) Arnold v. State, 315 Ga. App. 831, 832 (728 SE2d 342) (2012).

At the motion for new trial hearing, trial counsel testified that he held approximately ten to fifteen meetings with Butler prior to trial. He testified that it was his job to assess the strength of the state’s case and then communicate that information to the client, particularly if the evidence is overwhelming. After learning of the DNA evidence, he had intensive meetings with Butler at which he gave him a copy of the DNA report, told him that they had problems due to that evidence and explained the seriousness of the case. Counsel outlined the evidence against Butler, and told him that they would have a difficult time at trial explaining how his DNA and saliva, as well as bruises and marks, got on the child’s chest.

Counsel engaged in plea negotiations with the state and passed along all plea offers to Butler. He testified that the best offer made by the state was for a ten-year sentence, with five years to be served in prison. Counsel conveyed that offer to Butler, but he rejected it. According to counsel, Butler never wavered from his claim of innocence and, consistent with that claim, he had no desire to accept any of the state’s offers to plead guilty to something that he maintained he did not do. Counsel explained to Butler the possibility of maintaining his claim of innocence by entering a plea under North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), but it was not seriously considered because “in [Butler’s] assessment of facts . . . he . . . would’ve been volunteering for prison time for something [about which] he professed his innocence.”

Butler’s testimony at the hearing conflicted with trial counsel’s testimony. Butler claimed that he only met with his attorney three times; that counsel did not explain the evidence to him; that his attorney never told him about the plea offer of ten years to serve five, but did tell him that he had rejected a seven-year plea offer from the state; that if he had been told of that offer he would have accepted it; and that he was not informed of the possibility of an Alford plea, but if he had been told of it he would not have gone to trial.

Decided November 21, 2012

Reconsideration denied December 13, 2012.

J. Scott Key, Margaret E. Flynt, for appellant.

Scott L. Ballard, District Attorney, Jeremy M. Hayes, Assistant District Attorney, for appellee.

It was the function of the trial court at the motion for new trial hearing to determine witness credibility and resolve any conflicts in the testimony. Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995). In its role as factfinder, the trial court was authorized to believe the testimony of trial counsel and reject any conflicting testimony from Butler. See Jividen v. State, 256 Ga. App. 642, 645 (1) (b) (569 SE2d 589) (2002); Carroll v. State, 252 Ga. App. 142, 147 (4) (a) (555 SE2d 807) (2001). And on appeal, we must accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous. Glover v. State, 291 Ga. 152, 154 (2) (728 SE2d 221) (2012). In this case, there is no clear error given trial counsel’s testimony establishing that, contrary to Butler’s claims, he fully explained the evidence and the strength of the state’s case to Butler, he conveyed all plea bargain offers from the state to Butler, and Butler rejected those offers. See Trammell v. State, 262 Ga. App. 786, 787 (2) (a) (586 SE2d 693) (2003) (trial court’s determination that counsel did not fail to communicate plea bargain offer to appellant was a matter of credibility of witnesses, and we are not authorized to disturb it). The fact that Butler now regrets his decision to reject the state’s negotiated plea offer and exercise his right to a jury trial affords no basis for relief. See Arnold, supra at 833; Baskin v. State, 267 Ga. App. 711, 713-714 (1) (a) (600 SE2d 599) (2004).

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.