author: BARNES, Presiding Judge.

text:
    A13A1535.
    SORG v. THE STATE.
    (751 SE2d 196)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Carl Sorg appeals his 20-count conviction for the sexual exploitation of children. Sorg contends that the trial court erred in denying his motion for directed verdict because the evidence was insufficient to demonstrate that he knowingly possessed or controlled pornographic images of children. Upon our review, we affirm.

[O]n appeal from a criminal conviction, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility, and the evidence is viewed in the light most favorable to support the verdict, with the defendant no longer benefitting from a presumption of innocence.

Dickerson v. State, 304 Ga. App. 762, 765 (2) (697 SE2d 874) (2010). The standard under Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

So viewed, the evidence demonstrates that at approximately 11:30 p.m. on October 22, 2009, a City of Monroe police officer responded to a suspicious vehicle call at a local Wendy’s restaurant. The officer observed a red Saturn in the parking lot with one occupant — the driver — who was later identified as Sorg. The officer parked within three yards of the car with his headlights and take-down lights illuminating the interior of Sorg’s car. Sorg was looking at a laptop computer and did not appear to notice the officer, although the officer was not trying to conceal his presence. The officer went to the rear of Sorg’s vehicle to run his tag, and observed through the rear window that Sorg was looking at pornographic images. The officer initially saw what appeared to be images of adults on the screen, and called for backup because of the unusual circumstances. When the second unit arrived, Sorg noticed the officers’ presence and “started either exiting out or minimizing the screens” on his computer.

As the first officer observed from the rear window, he saw Sorg “going back and forth from screen to screen” and he noticed that many of the computer images were of children involved in sexual acts. He testified that the images were obviously children and that “the females had underdeveloped breasts [and]... no pubic hair on any of the genital regions on either the male or female photograph[s].” Sorg consented to a search of his vehicle, and the computer was taken into custody. A third officer who had more computer knowledge also responded to the scene, and upon examining the computer, observed that Sorg had minimized 21 windows on his computer, and that each window had a separate uniform resource locator (“URL”). The officer opened three windows and verified that the images were of “naked children.” Sorg was arrested for loitering and child pornography.

When he was interviewed at the station, Sorg told the detective assigned to the case that the images were “pop-up” images that he had not intentionally viewed. He told the detective that the pop-ups would display, and “when he tried to navigate away or off of a page or click a link that it sent him to . . . child pornography.” The detective asked Sorg to reproduce the actions that resulted in the pop-ups, but Sorg was unable to do so. The detective also observed that the computer’s search history included websites from which some of the images of the children originated. An expert in computer forensics and analysis testified that in his opinion the pornographic images of children did not arise from pop-up windows and that Sorg’s computer software would prevent any pop-ups without Sorg specifically enabling a pop-up screen to appear. He further testified that the images he retrieved from the computer that had resulted in the 20-count indictment were all time-stamped October 22, 2009.

Decided November 8, 2013.

Jesse C. Kent, for appellant.

Layla H. Zon, District Attorney, Walter C. Howard, Assistant District Attorney, for appellee.

Sorg contends that the evidence was insufficient to support his convictions for sexual exploitation of children. Sorg specifically argues that there is no evidence that he had possession or control over the pornographic images and that evidence that there was child pornography in his computer’s cache was insufficient to support his conviction. We disagree.

A person commits the offense of sexual exploitation of children when he “knowingly ... possess [es] or control [s] any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” OCGA § 16-12-100 (b) (8). Citing Barton v. State, 286 Ga. App. 49 (648 SE2d 660) (2007), Sorg argues that his conviction must likewise be reversed. In Barton we reversed the defendant’s conviction for sexual exploitation because the evidence was insufficient to show that Barton was aware that images of child pornography were stored in his computer’s cache. Id. at 52. In Barton, we found that the evidence established only that the images of child pornography had been downloaded automatically and stored in the defendant’s cache folders. In contrast, here the evidence showed that the child pornography images found in the cache folder on Sorg’s computer had all been intentionally accessed on the date the officer observed Sorg with his computer. Moreover, an officer observed the images on Sorg’s computer and also watched as Sorg attempted to close and minimize the pornographic images of children. These actions all indicated that the images were not generated in a passive way.

The resolution of issues of credibility and conflicting evidence was for the jury, not this Court, to resolve. Our review indicates that the evidence presented at trial in this case was sufficient under the standard of Jackson, 443 U. S. 307; thus Sorg’s challenge to the sufficiency of the evidence must fail. Haynes v. State, 317 Ga. App. 400, 401 (1) (731 SE2d 83) (2012) (sufficient evidence for jury to determine that defendant intentionally accessed images stored in computer cache).

Judgment affirmed.

Miller and Ray, JJ., concur.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A1017.
    CARROLL v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (751 SE2d 421)
   Miller, Judge.

This appeal arises from an action that Barbara Ann Carroll filed against the Board of Regents of the University System of Georgia (the “Board”) for breach of contract, promissory estoppel, unjust enrichment, and attorney fees based upon the Board’s failure to compensate her for unused annual leave upon her retirement. The trial court granted the Board’s motion to dismiss the unjust enrichment and promissory estoppel claims, concluding that they were barred by sovereign immunity. The trial court subsequently granted the Board’s motion for summary judgment on the breach of contract claim, concluding that under the clear and unambiguous terms of a settlement agreement that Carroll entered into with the Board providing for her early retirement, Carroll was not entitled to compensation for the unused annual leave and Carroll could not establish that the parties modified their agreement. Carroll argues on appeal that the settlement agreement is ambiguous regarding her right to compensation for unused annual leave and that genuine issues of material fact exist as to whether the parties modified the agreement. She also challenges the dismissal of her unjust enrichment and promissory estoppel claims. We discern no error and affirm.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of appellate review and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Punctuation and footnote omitted.) Community Marketplace Properties, LLC v. SunTrust Bank, 303 Ga. App. 403, 404 (693 SE2d 602) (2010). So viewed, the record shows that Carroll served as a professor in the marketing department of the Terry College of Business (“TCB”) at the University of Georgia (“UGA”) from 1986 until her retirement on September 1, 2010. In August 2007, Carroll approached Robert Sumichrast, the dean of TCB, about entering into an agreement providing for her early retirement. She testified that she was interested in retiring because “[i]t had been a problematic time of employment, particularly under the former department head..., and there were lots of issues.” Carroll’s objectives in pursuing an early retirement agreement were to secure a significant salary increase and to ensure that the increase was factored into her pension so that she could afford to retire at age 62.

Sumichrast was amenable to Carroll’s proposal provided that she agreed to a covenant not to sue UGA on any existing claims, and Sumichrast and Carroll began to negotiate an agreement. Carroll consulted the Teachers Retirement System of Georgia (“TRS”) in choosing a retirement date to be sure that her raise would not be subject to “caps” and would be fully taken into account in calculating her pension. At the time, Carroll was earning approximately $92,000 under an academic year contract, and she was not paid during the summers and did not accrue annual leave. Since the salary increase Carroll would receive was significant, the UGA administration wanted to place Carroll on a 12-month contract in order to spread out payment over a year instead of nine months. The UGA Provost also believed it would be easier to have the higher salary approved under a 12-month contract. Under a 12-month contract, Carroll would accrue annual leave. Sumichrast testified that the accrual of annual leave was not a term discussed during his conversations with Carroll and “was incidental to her being placed on the 12-month contract.” On January 3, 2008, Sumichrast, on behalf of the Board, and Carroll executed a Settlement Agreement, Release, and Covenant Not to Sue (the “Settlement Agreement”) providing for Carroll’s retirement “no later than January 1, 2011” and stating, in relevant part, that

[TCB] will convert [Carroll’s] faculty contract from an academic year contract to a twelve (12) month contract with a salary rate of $144,667.00, effective January 1, 2008.... On a twelve (12) month contract, [Carroll] will accrue annual leave at a rate of fourteen (14) hours per month. [Carroll] agrees that all annual leave will be used between the end of the Spring Semester 2010 and the date of her retirement. [Carroll] agrees that there will be no annual leave balance remaining as of the date of her retirement.

In May 2010, Carroll formally applied for retirement with TRS and requested a binding benefits letter. Thereafter, Carroll made an appointment with Travis Jackson, senior managing consultant in the human resources department at UGA, to obtain counseling on the retirement process. Carroll met with Jackson in late July 2010 and on August 6, 2010 after she had received her benefits letter from TRS. During the first meeting, Carroll took notes regarding steps she needed to take, which were kept in Jackson’s file. The final item on the list states: “Get 146 annual leave in cash.”

Jackson testified that he understood that Carroll had an agreement with her department to retire early but was not aware that she had entered into a formal written settlement agreement or that it addressed annual leave. Thus, Jackson was operating under “standard protocol” and advised Carroll that she would be paid for her unused annual leave upon retirement, consistent with UGA and Board policy. Carroll testified, however, that she told Jackson that she had entered into a Settlement Agreement stating that she was to retire with no annual leave balance and that she showed him a copy of the agreement. According to Carroll, Jackson nonetheless advised her that “by law they either had to let me use it or pay me for it.” On August 6, 2010, Carroll sent an e-mail to Charlotte Mason, her department head, stating that she planned to retire on September 1, 2010 and wished to have her accrued annual leave hours “paid out in cash with my last check of 8/31/10.” Mason responded: “Thank you for letting me know.... [F]rom your email, it look[s] like you have worked everything out. I will follow up with the Business Office on Monday to see if there is anything that needs to be done on this end.” Carroll had 160 hours of unused annual leave at retirement and was not compensated for these hours.

1. Carroll argues that the trial court erred in granting summary judgment on her breach of contract claim because the Settlement Agreement is ambiguous regarding her right to compensation for unused annual leave. We find no error.

“[T]he proper construction of a contract, and whether the contract is ambiguous, are questions of law for the court to decide.” (Punctuation and footnote omitted.) Roberson v. Leone, 315 Ga. App. 459, 462 (726 SE2d 565) (2012).

The first rule of contract construction is to determine the parties’ intent, and if the language is clear the contract shall be enforced according to its clear terms. In fact, no construction is even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.

(Footnote omitted.) Longstreet v. Decker, 312 Ga. App. 1, 3 (1) (717 SE2d 513) (2011). If the contract language is ambiguous, the court will apply the rules of contract construction, and only if an ambiguity remains thereafter will the parties’ intent be determined by a jury or other factfinder. Simpson v. Pendergast, 290 Ga. App. 293, 296 (1) (659 SE2d 716) (2008). While a settlement agreement is a contract subject to the usual rules of contract construction, City of Demorest v. Roberts & Dunahoo Properties, LLC, 288 Ga. App. 708, 711-712 (1) (655 SE2d 617) (2007), we note that “the law ... favors compromise, and when parties have entered into a definite, certain, and unambiguous agreement to settle, it should be enforced.” (Citation and punctuation omitted.) Savannah Yacht Corp. v. Thunderbolt Marine, 297 Ga. App. 104, 109 (1) (676 SE2d 728) (2009).

Pursuant to the Settlement Agreement, Carroll clearly agreed “that all annual leave will be used between the end of the Spring Semester 2010 and the date of her retirement” and “that there will be no annual leave balance remaining as of the date of her retirement.” Even assuming arguendo that the meaning of this provision may be characterized as uncertain because it does not also expressly state that Carroll will not be compensated for any annual leave balance upon her retirement, application of the relevant rules of contract construction eliminates any ambiguity. OCGA § 13-2-2 (4) provides that “[t]he construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.” Consistent with this directive, we have held that

a contract must be interpreted to give the greatest effect possible to all provisions rather than to leave any part of the contract unreasonable or having no effect. And, one of the most fundamental principles of construction is that a court should, if possible, construe a contract so as not to render any of its provisions meaningless.

White v. Kaminsky, 271 Ga. App. 719, 722 (610 SE2d 542) (2004). The terms of the Settlement Agreement providing that Carroll would use her annual leave and retire without an annual leave balance would serve no apparent purpose if there were no repercussion for noncompliance. Those provisions carry meaning only if their intent was to require Carroll to use her annual leave before retirement and preclude compensation for any remaining annual leave if she failed to do so.

We find no merit in Carroll’s argument that the Settlement Agreement is ambiguous because it incorporates Board and UGA policies, which provide that unused annual leave, up to a certain threshold, will be paid upon termination of employment. While the Settlement Agreement states that “[Carroll] agrees to follow all [UGA] policies and procedures and that her failure to follow [UGA] and/or [Board] policies and procedures will subject her to disciplinary action,” this provision relates to Carroll’s contractual duties and does not generally incorporate UGA and/or Board policies. Compare Bd. of Regents of the Univ. System of Ga. v. Ambati, 299 Ga. App. 804, 807 (1) (685 SE2d 719) (2009) (agreement stated that it was “made expressly subject to... the statutes and regulations of this institution and to the bylaws and policies of the [Board]”).

In sum, given the specific facts and posture of this case and consistent with the applicable rules of contract construction, we conclude that the entire purpose of the parties’ Settlement Agreement was to allow Carroll to retire early at a higher salary in exchange for her consent to a covenant not to sue. In order to obtain the higher salary she bargained for with UGA and the Board, Carroll agreed to use her annual leave hours prior to retirement and to forego compensation for unused annual leave hours if she failed to do so.

2. Carroll maintains that genuine issues of material fact exist as to whether her subsequent communications with UGA employees or officials modified the Settlement Agreement. We disagree.

The Georgia Constitution provides that sovereign immunity extends to the State and its departments and agencies, and its exception to the defense of sovereign immunity for breach of contract actions applies only to actions for breach of a written contract. See Ga. Const. of 1983, Art. I, Sec. II, Par. IX (c) and (e). The Board is a state agency entitled to claim the protection of sovereign immunity. See Bd. of Regents of Univ. System of Ga. v. Ruff, 315 Ga. App. 452, 456 (2) (726 SE2d 451) (2012). “A waiver of sovereign immunity must be established by the party seeking to benefit from that waiver.” (Punctuation and footnote omitted.) Id. Attempting to avoid the bar of sovereign immunity, Carroll argues that a written contract modification, like a written contract, may be created when there are multiple signed, contemporaneous agreements demonstrating an intent to enter a binding contract and the individual documents, together, include all of the necessary terms. Carroll contends that the notes she took during her first meeting with Jackson and her e-mail to Mason requesting compensation for her unused annual leave together comprise a written modification of the Settlement Agreement.

Neither Jackson nor any other purported UGA or Board representative signed Carroll’s meeting notes. Moreover, Mason’s response to Carroll’s e-mail did not demonstrate an intent to modify the Settlement Agreement because Mason’s response did not mention Carroll’s request for compensation for annual leave or represent that payment would be made. Under the circumstances, the notes and e-mail correspondence do not constitute signed, contemporaneous agreements demonstrating an intent to modify the Settlement Agreement. See Bd. of Regents of the Univ. System of Ga. v. Barnes, 322 Ga. App. 47, 50 (2) (743 SE2d 609) (2013) (unauthenticated partial copy of student code of conduct and counseling center consent form signed only by plaintiff did not constitute signed, contemporaneous agreements between the parties demonstrating intent to enter binding contract); Ruff, supra, 315 Ga. App. at 457 (2) (Board did not waive sovereign immunity, as application for study abroad program, excerpts from manual governing program, and written refund policy •—• none of which were signed by a representative of the Board or university— did not demonstrate Board’s intent to enter into binding contract); see also Thomas v. Garrett, 265 Ga. 395, 396 (1) (456 SE2d 573) (1995) (contract modification requires a subsequent mutual agreement of contracting parties). Further, while a written contract may be modified by a subsequent agreement, a modification must be founded upon new consideration. Ranger Constr. Co. v. Robertshaw Controls Co., 166 Ga. App. 679, 681 (1) (305 SE2d 361) (1983). The notes and e-mails at issue do not point to any new consideration the Board would receive in return for modifying the Settlement Agreement.

3. Finally, Carroll contends that the trial court erred in dismissing her claims for promissory estoppel and unjust enrichment on the ground that they are barred by sovereign immunity. We disagree.

We review de novo the trial court’s grant of the Board’s motion to dismiss, bearing in mind that Carroll bears the burden of proving a waiver of sovereign immunity. See Pelham v. Bd. of Regents of the Univ. System of Ga., 321 Ga. App. 791 (743 SE2d 469) (2013). It is well established that neither the Georgia Constitution nor any state statute waives sovereign immunity for equitable claims against the State, such as claims for unjust enrichment and promissory estoppel. DeKalb County School Dist. v. Gold, 318 Ga. App. 633, 640-641 (1) (b) (734 SE2d 466) (2012); Ga. Dept. of Community Health v. Data Inquiry, LLC, 313 Ga. App. 683, 687-688 (2) (722 SE2d 403) (2012). Carroll argues that she is entitled to pursue her equitable claims against the Board under Quillian v. Employees’ Retirement System of Ga., in which the Supreme Court of Georgia, without any discussion of sovereign immunity, held that under the “unique circumstances” of the case, the retirement system was estopped from recalculating and reducing the retirement benefits it had represented a retiring appellate judge would receive. 259 Ga. 253, 255 (5) (379 SE2d 515) (1989). In Gold, supra, 318 Ga. App. at 640-641 (1) (b), this Court considered and rejected the same argument Carroll advances, and we decline Carroll’s invitation to reconsider Gold in this case.

Decided November 12, 2013.

Phillip C. Griffeth, for appellant.

Samuel S. Olens, Attorney General, Annette M. Cowart, Senior Assistant Attorney General, Shelley S. Seinberg, Assistant Attorney General, for appellee.

Judgment affirmed.

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

       To the extent Carroll contends that the 12-month employment contracts she entered into as a result of the Settlement Agreement incorporated UGA or Board policies, her argument fails because none of these contracts is included in the record. See Farmer v. Branch Banking and Trust Co., 312 Ga. App. 519, 520 (718 SE2d 867) (2011) (burden is on party alleging error to show it affirmatively by the record).

       Given that Carroll’s underlying claims all fail, it follows that she cannot recover on her claim for attorney fees and costs under OCGA § 13-6-11. See Lee v. Ga. Power Co., 296 Ga. App. 719, 721 (2) (675 SE2d 465) (2009).


author: DOYLE, Presiding Judge.

text:
    A13A1116.
    DAWSON v. WAL-MART STORES, INC.
    (751 SE2d 426)
   DOYLE, Presiding Judge.

Shannon Dawson filed the instant personal injury suit asserting, inter alia, negligence claims against Wal-Mart Stores, Inc., stemming from an incident during which she was attacked and kidnapped from the Baxley, Georgia, store at which she worked and was thereafter physically and sexually assaulted by the perpetrator. Wal-Mart answered and filed a motion to dismiss or alternatively for summary judgment on the ground that Dawson’s claims against it were barred by the exclusive remedy provision of the Georgia Workers’ Compensation Act. The trial court granted the motion and dismissed Dawson’s claims against Wal-Mart. For the reasons that follow, we affirm.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a 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.

So viewed, the record shows that Dawson was a department manager at the Baxley Wal-Mart store, and on January 30, 2010, she was scheduled to begin her shift at 5:00 a.m. Unbeknownst to Dawson, Joseph Curtis Williams, who previously had been convicted of rape, had been drinking and possibly using cocaine and was in his vehicle in the parking lot waiting for his shift to begin at his unrelated place of employment. Shortly before her shift started, Dawson parked in the store parking lot and walked toward the front of the store. Before she could enter the store, a dark-colored Jeep Cherokee driven by Williams hit Dawson, and Williams put the unconscious Dawson into his vehicle and drove her approximately two miles away. At that point, Dawson regained consciousness and struggled with Williams in order to stop the vehicle, at which point the car ran into a ditch, and Williams dragged Dawson into a wooded area, where he physically and sexually assaulted her for approximately an hour and a half.

In the meantime, Dawson’s kidnapping was witnessed by a co-worker, who retrieved her purse from the ground and alerted his manager to the event. The manager contacted authorities, who issued a be-on-the-lookout (“BOLO”) alert for a dark-colored Jeep based on the co-worker’s description. Wal-Mart employees contacted the asset protection manager in order to assist officers by allowing them access to the store’s video surveillance recordings, which they were able to do at approximately 6:30 a.m. After viewing the video, authorities were able to identify Williams as the driver of the Jeep, and the original BOLO was updated with Williams’s name and the vehicle’s tag number.

Just after 7:00 a.m., a deputy on route to Williams’s mother’s residence discovered the Jeep by the side of the road and located Dawson, who had severe injuries and was transported to a hospital. Around this time, residents in the area contacted authorities to report that an individual was running from the scene back toward the Wal-Mart. At approximately 7:45 a.m., Williams was apprehended in front of a technical college located next to the Wal-Mart.

During the subsequent investigation by police, Williams’s girlfriend stated that Williams became angry at her the night before the attack because she had refused to leave work and engage in sexual intercourse with him. The girlfriend stated that his voicemails became increasingly agitated during the course of the night, and after he was arrested, Williams told her while he was in the Wal-Mart parking lot he had been “trying to sober up.” The officer assigned to the investigation theorized that Williams had attacked Dawson because of his anger and frustration with the girlfriend andbecause Dawson resembled her. Williams was convicted of charges stemming from the attack, and he is currently serving a life sentence in a Georgia correctional facility.

Dawson filed the instant personal injury complaint alleging that Wal-Mart was negligent in failing to make the surveillance video available to officers in a more timely fashion, thereby allowing Williams to continue his attack on Dawson for a longer period of time. Wal-Mart moved to dismiss or for summary judgment on the basis that the action was barred by the exclusive remedy provision of the Georgia Workers’ Compensation Act. The trial court found that Dawson’s injuries were compensable, and therefore, her tort claims against Wal-Mart were barred by the provision. This appeal followed.

Dawson contends that the trial court erred by determining that her claim against Wal-Mart was barred by the exclusive remedy provision because her injuries did not arise out of her employment with Wal-Mart.

The Workers’ Compensation Act is the exclusive remedy for an injury by accident arising out of and in the course of employment. A felonious assault by a third party upon an employee is treated as an accident covered by the Act, so long as the wilful act is not directed against the employee for reasons personal to the employee. In order to determine if the assault occurred for reasons personal to the employee, we consider whether the injuries of which the employee complains (1) arose out of and (2) in the course of her employment. If these two conditions are met, the employee’s tort claims are barred by the exclusive remedy provisions of the Workers’ Compensation Act. Accordingly, whether the attack resulting in [Dawson’s injuries] occurred for reasons personal to her depends upon whether her [injuries] arose out of and in the course of her employment with [Wal-Mart] .

1. As an initial matter, Dawson concedes that her injuries occurred “in the course” of her employment with Wal-Mart, and therefore, we only address the issue of whether her injuries “arose out of” her employment.

2. Dawson argues that there is a question of fact as to whether Williams’s attack on her was personal and did not “arise out of” her employment with Wal-Mart because the investigation into the attack showed that Williams may have attacked her due to her resemblance to his girlfriend with whom he was angry at the time.

The words “arising out of” mean that there must be some causal connection between the conditions under which the employee worked and the injury which he received. The causative danger must be incidental to the character of the employment, and not independent of the relation of master and servant. The accident must be one resulting from a risk reasonably incident to the employment. And a risk is incident to the employment when it belongs to, or is connected with, what a workman has to do in fulfilling his contract of service. It arises out of the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work, and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises out of the employment.

Contrarily, the definition “excludes an injury which can not fairly be traced to the employment as a contributing proximate cause, and which comes from a hazard to which the workmen would have been equally exposed apart from the employment.”

This Court has addressed on-the-job sexual or physical assaults, and the result of whether injuries as a result of such an attack are subject to the exclusive rémedy provision are largely fact specific. In a similar case factually to the instant one, Helton v. Interstate Brands Corp., this Court addressed a scenario in which the plaintiff arrived for her 5:00 a.m. shift and parked in the employee parking lot of the defendant company. “As plaintiff exited her car, she was assaulted by a person who was unknown to her, but who was later identified as another employee of defendant. Plaintiff was [forcibly] taken by the assailant in his car to an area away from the plant where she was again assaulted and then raped.” This Court affirmed the finding that the injuries from the assault arose out of the plaintiff’s employment because “[t]he early morning hour at which plaintiff was required to report to work and the location of the company parking lot in the vicinity of an area of known criminal activity provide the causal connection with her employment.”

In Macy’s South v. Clark, this Court explained that the assault and rape of an employee returning to her car during the evening was a compensable injury subject to the exclusive remedy provision because the injury arose out of her employment: the employee was only in the garage because she was an employee and was given a discount and the facts that only one security guard was on duty at the time and that the garage was open to the public created a risk to the employee.

In Burns Intl. Security Svcs. Corp. v. Johnson this Court determined that the sexual assault and murder of an on-duty security guard was subject to the exclusive remedy provision because there was no evidence beyond mere speculation to show that the guard had left her post on a personal pursuit before being attacked and murdered on the derelict, high-risk property she was assigned to patrol.

Other cases have determined that the sexual or physical attacks did not “arise out of” the employment relationship. In Johnson v. Holiday Food Stores, which centers on the premises liability aspects of the case, this Court summarily rejected the defendant’s claim that the tort claims were barred by the exclusive remedy provision. The employee had been injured on the job as a store clerk after her boyfriend came into the store and attacked her. This Court concluded that the defendant’s argument was meritless because “the evidence show[ed] that [the employee’s] injuries were caused by the wilful act of a third person for reasons entirely personal to her.” In Murphy v. ARA Svcs., this Court concluded that the employee’s injuries from the sexual and verbal assault of her by a supervisor did not arise out of her employment, and they were not precluded by the exclusive remedy provision.

Decided November 12, 2013

Smith, Ramay & Bennett, Ken W. Smith, John A. Ramay, Jr., for appellant.

McLain & Merritt, Dawn M. Rivera, Albert J. Decusati, for appellee.

In this case, although Dawson contends that the affidavit of the investigating officer provides evidence that there is a question of fact as to whether the attack was personal to her based on her resemblance to Williams’s girlfriend, this is simply speculation as to Williams’s motive without any support by testimony from Williams or anyone else that could create a fact question as to whether Williams attacked Dawson solely based on her resemblance to a particular person. It is undisputed that Dawson and Williams were unknown to each other prior to the attack, and thus, Williams randomly attacked Dawson merely because she was at that location, even if her appearance somehow played a part in his decision to attack. Although the Wal-Mart parking lot is not regarded as a high-crime location for that area, it is undisputed that Dawson was walking from the parking lot into the store at an early morning hour when it would still have been dark. Under these circumstances, the trial court correctly determined that Dawson’s claims against Wal-Mart were precluded by the exclusive remedy provision of the Georgia Workers’ Compensation Act.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       Dawson’s suit also alleged claims against Joseph Curtis Williams. Those claims are not at issue in this appeal.

       OCGA § 34-9-11 (a).

       (Citation and punctuation omitted.) Dixie Roadbuilders v. Sallet, 318 Ga. App. 228, 229 (733 SE2d 511) (2012). See also OCGA § 9-11-56 (c).

       (Citations and punctuation omitted.) Burns Intl. Security Svcs. Corp. v. Johnson, 284 Ga. App. 289, 290-291 (1) (643 SE2d 800) (2007), citing Helton v. Interstate Brands Corp., 155 Ga. App. 607, 608 (271 SE2d 739) (1980) and Maxwell v. Hosp. Auth. of Dade, Walker & Catoosa Counties, 202 Ga. App. 92, 93 (413 SE2d 205) (1991).

       An injury arises in the course of employment when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of her duties, and while she is fulfilling those duties or engaged in doing something incidental thereto. This statutory requirement relates to the time, place and circumstances under which the injury takes place.
      (Punctuation omitted.) Burns Intl. Security Svcs. Corp., 284 Ga. App. at 292 (1) (b).

       (Punctuation omitted.) Id. at 291 (1) (a).

        Murphy v. ARA Svcs., 164 Ga. App. 859, 862 (298 SE2d 528) (1982).

       155 Ga. App. 607 (271 SE2d 739) (1980).

       Id.

       Id.

       Id. at 609.

       215 Ga. App. 661 (452 SE2d 530) (1994).

       See id. at 663 (1).

       284 Ga. App. at 289.

       See id. at 289-290, 292-293 (1) (b).

       238 Ga. App. 822, 824 (1) (520 SE2d 502) (1999).

       See id. at 823-824 (1).

       Id. at 824-825 (1).

       164 Ga. App. at 859.

       Id. at 862-863. See also Kennedy v. Pineland State Bank, 211 Ga. App. 375, 376 (439 SE2d 106) (1993) (sexual assault of employee by board member was not barred by the exclusive remedy provision of the Act because she was equally exposed to the attack apart from her employment); Wood v. Aetna Cas. & Surety Co., 116 Ga. App. 284, 286 (1) (157 SE2d 60) (1967) (decedent shot by co-worker’s jealous husband was not a compensable injury because the injury did not arise out of employment).

       Compare with Dixie Roadbuilders, 318 Ga. App. at 233-234 (2) (b).

       See Macy’s South, 215 Ga. App. at 663 (1); Helton, 155 Ga. App. at 607. Compare with Kennedy, 211 Ga. App. at 376; Murphy, 164 Ga. App. at 862-863; Wood, 116 Ga. App. at 285 (1).

       See Macy’s South, 215 Ga. App. at 664 (1); Helton, 155 Ga. App. at 607.


author: ELLINGTON, Presiding Judge.

text:
    A13A1200.
    BLANTON v. THE STATE.
    (751 SE2d 431)
   ELLINGTON, Presiding Judge.

After the State indicted him for multiple counts of incest and child molestation, Dean Blanton filed a plea of former j eopardy and a motion to dismiss the indictment. He appeals from the trial court’s denial of the motion, contending that prosecution on the indictment is barred because the State charged him with the same offenses in two previous indictments. He also contends, in the alternative, that the court erred in denying his special demurrer to the most recent indictment, arguing that the State failed to show that it was unable to identify specific dates, or reasonably narrow the range of dates, during which he allegedly committed the offenses. For the following reasons, we affirm.

The record shows the following undisputed, relevant facts. In October 2010, the Lowndes County Grand Jury returned an indictment (hereinafter, “the first indictment”) charging Blanton with two counts of incest, three counts of child molestation, and one count of making a terroristic threat. The indictment alleged that Blanton committed acts of incest involving the older of his two daughters “on or about the 1st day of May, 2008 and the 30th day of April, 2010, the exact date and time unknown to the Grand Jury, but known to the accused[.]” It charged him with committing child molestation against his younger daughter “on or about the 1st day of May, 2008 and the 13th day of December 2009, the exact date and time unknown to the Grand Jury, but known to the accusedf.]” Blanton filed general and special demurrers to the indictment, and, although the court denied the demurrers, the State decided to obtain a new indictment in order to narrow the ranges of dates alleged in the child molestation counts.

In April 2011, the State re-indicted Blanton for the same crimes (“the second indictment”); the only substantive changes to the allegations were that the acts of child molestation occurred “on or about the 1st day of June, 2008 and the 1st day of February, 2009[.]” Blanton again filed a special demurrer asserting that the court should quash the incest and child molestation charges because the State had failed to identify the specific dates (or, at least, to sufficiently narrow the ranges of dates) during which the offenses allegedly occurred. During a hearing on the demurrer (“the June 2011 hearing”), the State argued that it was unable to identify the actual dates of the offenses and, in support of this argument, it presented the testimony of a police detective who had interviewed the incest victim and the victims’ mother and had observed the forensic interview of the child molestation victim. Following the hearing, the court ruled that the State had met its burden of demonstrating that it had tried to narrow the range of dates given in the indictment and that, under the circumstances presented, it had been unable to do so. As a result, it denied Blanton’s special demurrer.

Then, during an April 2012 motion hearing, Blanton raised a new challenge to the second indictment, arguing that it was defective because the range of dates identified in each count did not include the word “between,” for example, “between the 1st day of May, 2008 and the 30th day of April, 2010.” He argued that, as drafted, each count alleged that the offense at issue occurred “on or about” two distinct and separate dates. The trial court found that Blanton’s argument had merit, so it gave the State two options as to how to proceed: the court could dismiss the indictment and the State could re-indict Blanton, or the court could overrule the special demurrer and the State could proceed to trial with the risk that the indictment could later be deemed defective.

The State decided to re-indict Blanton, and, on April 27, 2012, it filed another indictment (“the third indictment”) in which it had added the word “between” to each of the counts in reference to the range of dates; this was the only difference between the second and third indictments. Blanton filed, inter alia, a special demurrer to the third indictment, again arguing that the ranges of dates given in the indictment were unreasonably broad, as well as a plea of former jeopardy and a motion to dismiss. The court denied Blanton’s motions, and, pursuant to the grant of a motion for an out-of-time appeal, Blanton filed a notice of appeal in November 2012. Then, on December 11, 2012, the trial court granted the State’s motion to enter an order of nolle prosequi as to the first indictment, and issued an order quashing the second indictment.

1. On appeal, Blanton contends that the trial court erred in denying his plea of former jeopardy and motion for judgment of acquittal, pursuant to OCGA § 17-7-53.1. The court denied the motions based upon its conclusion that OCGA § 17-7-53.1 did not bar his prosecution on the third indictment because, at the time of its ruling, neither the first nor the second indictment had been quashed. OCGA § 17-7-53.1 provides as follows:

If, upon the return of two “true bills” of indictments or presentments by a grand jury on the same offense, charge, or allegation, the indictments or presentments are quashed for the second time, whether by ruling on a motion, demurrer, special plea or exception, or other pleading of the defendant or by the court’s own motion, such actions shall be a bar to any future prosecution of such defendant for the offense, charge, or allegation.

This statute “specifies that the bar to further prosecution intervenes after a second quashing” and “refers only to action on a matter initiated by the defendant or the court, but not the State.” Redding v. State, 205 Ga. App. 613, 614 (2) (423 SE2d 10) (1992). Unlike a court’s order quashing an indictment, a motion to enter a “nolle prosequi” is a formal action made by the State based upon its decision not to further prosecute that indictment. Id. “It is the prerogative only of the State, which may enter it with court approval,” pursuant to OCGA § 17-8-3. (Citations omitted.) Id. at 614-615 (2).

Thus, this Court has ruled that to disregard the plain language of OCGA § 17-7-53.1 that limits its application to cases in which two previous indictments have been “quashed” as a result of some action initiated by the defendant or the court would “render such language meaningless. A statute is to be interpreted so as to give meaning to its entire content rather than to find parts to be surplusage. It follows that entries of nolle prosequi do not trigger the bar to prosecution in OCGA § 17-7-53.1.” (Citation omitted.) Redding v. State, 205 Ga. App. at 615 (2). See also State v. Lejeune, 276 Ga. 179, 184-185 (4) (576 SE2d 888) (2003) (“Nothing in [OCGA] § 17-7-53.1 evidences an intent [by the General Assembly] to include actions initiated by the State in the enumerated matters giving rise to application of the statutory bar to future prosecution.”).

Blanton argues, however, that the trial court abused its discretion in allowing the State to enter a nolle prosequi to the first indictment, because he had moved to quash the indictment and, more importantly, because the entry of a nolle prosequi (instead of an order quashing the first indictment) rendered OCGA § 17-7-53.1 inapplicable and disabled the statute’s bar to his prosecution on the third indictment. The Supreme Court of Georgia, however, has already addressed and decided a similar argument adversely to Blanton in Layman v. State, 280 Ga. 794 (631 SE2d 107) (2006). In Layman, the trial court approved the State’s requests for the entry of orders of nolle prosequi on two indictments, even though Layman had moved to quash each of them and had objected to the State’s requests. Id. On appeal, Layman argued that the trial court had abused its discretion by entering the orders of nolle prosequi over his objection. Id. The Court ruled, however, that, under OCGA § 17-8-3, the State does not need a defendant’s consent to obtain an order of nolle prosequi before the case has been submitted to a jury and that the entry of such orders renders the motions to quash moot. Id. at 794-795. More importantly, the Supreme Court also reiterated that “the trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid the application of OCGA § 17-7-53.1.” (Punctuation and footnote omitted.) Id. at 795, quoting State v. Lejeune, 276 Ga. at 184 (4). See also Funk v. State, 321 Ga. App. 737, 738 (742 SE2d 766) (2013) (accord); Shane v. State, 320 Ga. App. 1, 2 (739 SE2d 9) (2013) (accord).

Accordingly, we find no abuse of discretion by the trial court in granting the nolle prosequi as to the first indictment, nor did the court err in denying Blanton’s plea of former jeopardy and motion to dismiss the third indictment. Layman v. State, 280 Ga. at 795; Funk v. State, 321 Ga. App. at 738; Shane v. State, 320 Ga. App. at 2; Redding v. State, 205 Ga. App. at 614-615 (2).

2. Blanton contends that the trial court erred in denying his special demurrer to the third indictment, arguing that the State failed to demonstrate that it was unable to narrow the range of dates identified in each count of the indictment.

In reviewing a ruling on a special demurrer, we apply a de novo standard of review, because it is a question of law whether the allegations in the indictment are legally sufficient. Further, because we are reviewing an indictment before any trial, we do not conduct a harmless error analysis to determine if the defendant has actually been prejudiced by the alleged deficiencies in the indictment; rather, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance.

(Citations and punctuation omitted.) State v. Corhen, 306 Ga. App. 495, 497-498 (700 SE2d 912) (2010).

Generally, an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer. [] However, where the State can show that the evidence does not permit it to allege a specific date on which the offense occurred, the State is permitted to allege that the crime occurred between two particular dates.

(Footnotes omitted.) State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005). In such a situation, though, “the range of dates alleged in the indictment should not be unreasonably broad.” Mosby v. State, 319 Ga. App. 642, 643 (1) (738 SE2d 98) (2013).

In meeting its burden of showing that it is unable either to identify a specific date on which an offense occurred or to narrow the range of possible dates, the State is required to present some evidence and may not rely solely upon argument by counsel or mere speculation. Mosby v. State, 319 Ga. App. at 643-644 (1); Blackmon v. State, 272 Ga. App. 854, 854-855 (614 SE2d 118) (2005); State v. Gamblin, 251 Ga. App. 283, 284 (1) (553 SE2d 866) (2001). If the State fails to meet this evidentiary burden, or if the evidence presented demonstrates that the State is, in fact, reasonably capable of narrowing the range of dates alleged in the indictment, the indictment is subject to a special demurrer. State v. Layman, 279 Ga. at 340-341; Mosby v. State, 319 Ga. App. at 643 (1); see Howard v. State, 281 Ga. App. 797, 798-799 (1) (637 SE2d 448) (2006) (“Where the State’s own evidence shows that the State reasonably could narrow the range of dates, a special demurrer should be granted.”) (citation omitted).

(a) The incest charges in Counts 1 and 2. As shown above, the State alleged that Blanton engaged in two counts of incest with his older daughter “between the 1st day of May, 2008, and the 30th day of April, 2010, the exact date of the offense being unknown to the Grand Jury, but known to the accusedf.]” Count 1 alleged that he committed incest by having sexual intercourse with the victim, while Count 2 alleged that he committed incest by engaging in oral sodomy with the victim.

To show that it was unable to identify specific dates, or to narrow the range of dates, during which Blanton allegedly committed these offenses, the State presented the testimony of the police detective who had investigated the crimes. The detective testified that he had interviewed the incest victim and that she had told him that the first incident occurred in late May or early June 2008, at the end of her senior year of high school. She and Blanton were alone on a car trip to Georgia; they were moving some of their family’s belongings from their home in Florida to their new home in Lowndes County. Blanton committed the first act of incest on the first night that he and the victim stayed in the new home. The victim also reported that Blanton made her perform oral sex on him sometime during the summer of 2008. In addition to these incidents, the victim reported that Blanton engaged in incestuous acts with her approximately fifty more times throughout the two years alleged in the indictment, although the victim was unable to identify the dates of any specific incidents. She knew, however, that the last possible date that the incest could have occurred was May 7, 2010, because that was when her mother, who had been attending nursing school in Florida, moved back to Georgia to rejoin the rest of the family. The detective testified that, in an effort to get more specific dates, he asked the victim if she remembered whether any of the incidents had occurred around birthdays or other memorable dates or if she had written about any of the incidents in a diary or on a calendar, and she responded that she did not.

Blanton argues that the evidence presented demonstrates that the State could have narrowed the two-year time periods identified in Counts 1 and 2 of the indictment to between May 1 and July 31, 2008, and between December 1, 2009 and January 31, 2010, because there was evidence that he had engaged in sexual intercourse and/or oral sodomy with his older daughter during these time periods. In fact, on appeal, Blanton suggests that these are the only time periods during which the acts allegedly occurred and, therefore, the indictment should have been limited to this range of dates.

In support of this argument, Blanton relies solely on this Court’s ruling in Howard v. State, 281 Ga. App. at 798-799 (1). Our ruling in Howard, however, is inapplicable here because the material facts upon which that ruling was based are clearly distinguishable from those in this case. In Howard, the indictment alleged that the defendant committed acts of sexual misconduct against the victim between November 5, 2002, and February 28, 2003. Id. at 798 (1). At the hearing on the special demurrer, the State presented no evidence-, instead, it simply told the trial court that it could not identify more specific dates. Id. During a similar transaction hearing that took place later that day, however, the State called the victim as a witness, and she testified that the acts of sexual misconduct alleged in the indictment only occurred during the latter half of February 2003. Id. As a result, this Court concluded that, because the State’s own evidence showed that it could have narrowed the range of dates in the indictment, the special demurrer should have been granted. Id. at 798-799 (1).

In contrast, as shown above, the evidence in this case showed that Blanton had engaged in at least fifty individual acts of incest with his older daughter throughout the two-year time period alleged in the indictment, not j ust during the months Blanton identifies in his brief.

Consequently, we conclude that Blanton has failed to demonstrate that the trial court erred in denying his special demurrer to Counts 1 and 2 of the indictment. Cf. Mosby v. State, 319 Ga. App. at 643-644 (1) (The trial court erred in denying the defendant’s special demurrer because the State failed to present any evidence to show that it was unable to more specifically identify the dates of the alleged crimes.); State v. Meeks, 309 Ga. App. 855, 858 (1) (711 SE2d 403) (2011) (The trial court did not err in sustaining the defendant’s special demurrer when the record showed that the State gave no explanation as to why an investigating officer failed to ascertain the dates the offenses allegedly occurred.).

(b) The child molestation charges in Counts 3 through 5. The State indicted Blanton for committing three acts of child molestation against his younger daughter “between the 1st day of June, 2008, and the 1st day of February, 2009, the exact date of the offense being unknown to the Grand Jury, but known to the accused[.]” According to the police detective, the 15-year-old victim moved from Florida to the family’s home in Lowndes County in June 2008, after she finished her school year on June 8. She lived in Lowndes County until February 2,2009, when she moved back to Florida, where her mother was then living. According to the victim, Blanton committed acts of child molestation against her on a regular basis throughout that eight-month period, although she could not provide any specific dates. There is no evidence that the victim had written about any of the acts in a diary or on a calendar.

Decided November 12, 2013

Terry & Peterman, Jody D. Peterman, for appellant.

On appeal, the only cognizable challenge to Counts 3 through 5 that Blanton asserts is his contention that the victim may have turned sixteen years old at some point during the eight-month range of dates identified in each count and that, as a result, any act of molestation that he committed after she reached the age of sixteen was not punishable under OCGA § 16-6-4 (a) (l). Blanton has failed, however, to cite to any evidence in the record establishing the victim’s date of birth. Further, Blanton did not challenge the indictment on this basis in his special demurrer or the hearings thereon. In fact, in his special demurrer, he stated that the victim was “almost sixteen (16) years of age when [the indicted] acts allegedly happened[,]” and, during the June 2011 hearing, Blanton stated that the victim was “14 and 15 [years old] when [these acts] occurred.” Thus, Blanton has failed to demonstrate that he was entitled to a special demurrer on this basis.

Accordingly, because the record supports the trial court’s conclusion that the State was unable to narrow the range of dates during which Blanton allegedly molested his younger daughter, we find no error in its denial of his special demurrer as to Counts 3, 4, and 5 of the indictment. See Arnold v. State, 305 Ga. App. 45, 48-49 (2) (699 SE2d 77) (2010) (The trial court did not err in denying the defendant’s special demurrer, because evidence showed that the victim was a minor at the time defendant molested her, that she could not recall specifically when the molestation occurred, that she did not keep a diary or calendar that might aid her memory, and that the molestation occurred on at least a weekly basis during the three-year period alleged in the indictment.).

Judgment affirmed.

Phipps, C. J., and Branch, J., concur.

J. David Miller, District Attorney, Tracy K. Chapman, Assistant District Attorney, for appellee.

       Blanton also moved to sever the terroristic threat charge, and the court granted that motion.

       Although the trial court issued a certificate of immediate review, Blanton did not file an application for interlocutory review but, instead, filed a direct appeal, which this Court dismissed based upon lack of jurisdiction.

       During a June 2012 hearing on the motions, the trial court stated that, in deciding the special demurrer, it would rely on the transcript of the police detective’s testimony from the June 2011 hearing about his efforts to identify the specific dates of the offenses. See Division 2 (a), infra, regarding this testimony.

       We note that “[t]he filing of the notice of appeal did not divest the trial court of jurisdiction to entertain and grant the State’s petition for a nolle prosequi order.” (Citations omitted.) State v. Lejeune, 276 Ga. 179, 185 (4) (576 SE2d 888) (2003).
      Further, we note that Blanton’s brief refers to a “companion” appeal to the instant appeal in which he challenges the entry of the nolle prosequi as to the first indictment. However, no such appeal has been docketed in this Court.

       “The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Punctuation and footnote omitted.) Johns v. State, 319 Ga. App. 718, 719 (738 SE2d 304) (2013).

       OCGA § 17-8-3 provides, in relevant part, that, “[ajfter an examination of the case in open court andbefore it has been submitted to a jury, the prosecuting attorney may enter a nolle prosequi with the consent of the court.” “It is the duty of the district attorney to determine whether it is in the public interest to recommend to the trial court that an order of nolle prosequi be entered in a case, and when there is a recommendation that such an order be entered, it is within the discretion of the trial court whether to follow the recommendation.” (Citation omitted.) Sanders v. State, 280 Ga. 780, 782 (1) (631 SE2d 344) (2006).

       Although Blanton suggests that the State acted improperly by failing to timely dismiss the first two indictments, he failed to raise this issue in the court below. Further, while Blanton states that he filed a special demurrer and motion to dismiss the first and second indictments and that the trial court conducted a hearing on the motion on December 10, 2012, before it allowed the State to enter a nolle prosequi as to the first indictment and before it quashed the second indictment, the record does not contain any reference to the motion hearing or a hearing transcript. Thus, Blanton has failed to show by the record that the State’s conduct was improper. See Layman v. State, 280 Ga. 794, 795, n. 4 (631 SE2d 107) (2006) (finding that there had been no allegations of abusive conduct or harassment by the State and that the dispute over the indictment at issue on appeal instead stemmed from the defendant’s claim that the State had failed to sufficiently specify the date on which the alleged crime occurred).

       See also Gamble v. State, 235 Ga. App. 777, 778-779 (2) (510 SE2d 69) (1998) (This Court refused to extend the protection from further prosecution that OCGA § 17-7-53.1 provides to a situation in which the State filed a second indictment before it moved for entry of a nolle prosequi on the first indictment.); cf. State v. Dempsey, 290 Ga. 763, 764-766 (1) (727 SE2d 670) (2012) (The trial court denied the defendant’s motion to quash based upon its finding that the motion was untimely. Even so, the State re-indicted the defendant, and the court granted its motion to enter an order of nolle prosequi as to the first indictment. On appeal, the Supreme Court ruled that the trial court erred in finding that the motion to quash was untimely and that, because the first indictment was void due to the illegal composition of the grand jury, the court erred in denying the motion to quash.).

       See OCGA § 17-7-54 (a) (requiring that an indictment “state with sufficient certainty the offense and the time and place of committing the same”).

       During the June 2012 hearing on Blanton’s special demurrer to the third indictment, the trial court stated that it would consider the detective’s testimony from the June 2011 hearing to determine whether the State could have narrowed the range of dates. Although Blanton expressly consented to the court adopting and considering the detective’s testimony from the previous hearing, he argued that the testimony was insufficient to meet the State’s burden because it was based upon hearsay. Blanton, however, failed to raise a hearsay objection to the testimony when it was originally offered and, therefore, he waived any hearsay objection. See Davis v. Phoebe Putney Health Systems, 280 Ga. App. 505, 506 (1) (634 SE2d 452) (2006) (“A party cannot participate and acquiesce in a trial court’s procedure and then complain of it.”) (citation omitted); Williams v. State, 277 Ga. App. 106, 108 (2) (625 SE2d 509) (2005) (“We are a court for the correction of errors of law committed by the trial court where proper exception is taken, and we will not consider issues and grounds for objection, even of a constitutional magnitude, which were not raised and determined in the trial court.”) (footnote omitted).
      Moreover, although Blanton’s brief continues to refer to the detective’s testimony as hearsay, he has abandoned any potential claim of error arising from the court’s consideration of that evidence by failing to cite to authority that supports such a claim. See Court of Appeals Rule 25 (c) (2).

       The detective also reviewed written statements about the incidents that the victim had provided to the sheriff’s department; the time periods she provided in her written statements were consistent with her interview statements.

       After hearing the detective’s testimony, the trial court found that “the State has reasonably narrowed the possible dates as much as it could . . . under the circumstances.”

       Despite this conclusion, this Court ruled that, because we were not reviewing a pre-trial interlocutory appeal of the trial court’s denial of a special demurrer, but were, instead, reviewing a post-conviction appeal of the ruling, a harmless error standard of review applied. Howard v. State, 281 Ga. App. at 799 (1). Under that standard, “the relevant inquiry is whether the failure to narrow the range of dates alleged in the indictment materially affected [the defendant’s] ability to present a defense.” (Citation and punctuation omitted.) Id. This Court found that the defendant failed to demonstrate that narrowing the dates in the indictment would have enabled him to present an alibi defense. Id. Moreover, the victim’s testimony at the pre-trial similar transaction hearing gave the defendant “clear notice” of the February 2003 time frame in which the misconduct allegedly occurred. Id. Thus, we ruled that, “[w]here the defendant was aware of the correct information (though misstated in the indictment), the error in the indictment is manifestly harmless.” (Citation omitted.) Id.

       Under OCGA § 16-6-4 (a) (1), “[a] person commits the offense of child molestation when suchperson... [d] oes any immoral or indecent act to orin the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” (Emphasis supplied.)


author: McMillian, Judge. ANDREWS, Presiding Judge,

text:
    A13A1247.
    THE KROGER COMPANY v. SCHOENHOFF et al.
    (751 SE2d 438)
   McMillian, Judge.

Melanie and Steve Schoenhoff (collectively referred to as “plaintiffs”) filed personal injury and loss of consortium claims against the Kroger Company (“Kroger”) after Melanie slipped and fell while shopping at a Kroger Store (“the Store”) in Fayetteville, Georgia. The jury found in favor of plaintiffs and awarded Melanie $2,640,000 in damages on her personal injury claim and awarded her husband $150,000 on his loss of consortium claim. Kroger appeals, and in its sole enumeration of error, contends that it was entitled to a directed verdict because plaintiffs failed to show that Kroger had actual or constructive knowledge of the substance on the floor in which Melanie slipped and fell. As more fully set forth below, we now affirm. We decide this case under the overarching principle that

[t]he granting of a directed verdict is a grave matter as, in directing a verdict, the trial court takes the case away from the jury and substitutes its own judgment for the combined judgment of the jury. Thus, in reviewing a trial court’s denial of a motion for directed verdict, we will affirm the jury’s verdict as long as there [is] some evidence to support it. In so doing, we construe the evidence with every inference and presumption in favor of upholding the verdict.

(Citations and punctuation omitted.) Kroger Co. v. Strickland, 248 Ga. App. 613, 613-614 (1) (548 SE2d 375) (2001).

Concerning premises liability “slip and fall cases,” our Supreme Court has explained:

Premises liability lies at the intersection of tort law and property law. To recover on a theory of premises liability, a plaintiff must show injury caused by a hazard on an owner or occupier of land’s premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public. When a premises liability cause of action is based on a “trip and fall” or “slip and fall” claim — and the lion’s share of premises liability cases are — we have refined this general test down to two specific elements. The plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.

(Citations omitted.) American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009).

With this underpinning in mind, we turn to the relevant facts, which are largely undisputed. At approximately 6:00 p.m. on June 7, 2008, Melanie, her husband and their young daughter entered the Store, passing first through the produce area. They proceeded to shop throughout the Store for about 35 to 45 minutes, and then Steve and their daughter headed to the checkout area while Melanie went back to the produce section to get a bag of lettuce. Melanie picked up the bag of lettuce and started walking toward the checkout area. However, while walking through the floral area, Melanie slipped and fell in a “clear liquid,” i.e., water, in front of the floral display case “where the floral section meets up with the self-checkout.”

Melanie testified that she was watching where she was walking, but that she did not see anything on the floor before she fell; however, she testified that she did see a discrete puddle of liquid after she fell. Further, there was no evidence that Kroger had actual knowledge of the substance on the floor before Melanie fell. Thus, under the undisputed evidence presented at trial, plaintiffs’ right to recover depended on showing that the Store had constructive knowledge of the water on the floor in the area where Melanie slipped and fell.

Constructive knowledge may be shown by demonstrating that (1) an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition prior to the fall, or (2) the hazardous condition had existed for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.

Benefield, v. Tominich, 308 Ga. App. 605, 608 (1) (708 SE2d 563) (2011). See also The Augusta Country Club, Inc. v. Blake, 280 Ga. App. 650, 653 (1) (a) (634 SE2d 812) (2006); KMart Corp. v. Jackson, 239 Ga. App. 176, 178 (521 SE2d 93) (1999); Kroger Co. v. Brooks, 231 Ga. App. 650, 654 (1) (a) (500 SE2d 391) (1998). Moreover,

[t]he length of time the substance must remain on the floor before the owner should have discovered it and what constitutes a reasonable inspection procedure vary with each case, depending on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store’s location.

Davis v. Bruno’s Supermarkets, 263 Ga. App. 147, 150 (2) (587 SE2d 279) (2003). Augusta Country Club, 280 Ga. App. at 653 (1). Thus, under the second method of showing constructive knowledge, plaintiffs must produce evidence from which the jury may infer that a reasonable inspection procedure was not in place or was not followed and the length of time the substance had been on the floor.

With respect to the inspection procedures on the day in question, Kroger concedes that “[i]t is undisputed . . . that Kroger was unable to prove that it conducted any sweeps or inspections of the area where Melanie Schoenhoff fell on the date in question.” Moreover, based on our review of the record, the evidence demonstrates that pursuant to Kroger’s safety policy in effect on the date of the accident, employees were required to conduct an inspection of a designated area of the Store on at least an hourly basis. Thus, pretermitting whether Kroger’s inspection procedure was reasonable, plaintiffs were able to produce evidence from which a jury could infer that Kroger failed to adhere to any inspection procedure on the day Melanie was injured.

Despite this failure, Kroger argues that plaintiffs’ attempt to show it had constructive knowledge of the substance on the floor where Melanie fell must nevertheless fail because plaintiffs presented no evidence to show affirmatively how long the water had been on the floor, thereby failing to prove that the water had been on the floor for a sufficient amount of time that a reasonable inspection, even if one had been carried out, would have revealed it. But

where the evidence raises the inference that the foreign substance was discoverable pursuant to a reasonable inspection, a jury issue arises as to whether the defendant had constructive knowledge of what reasonable inspection would have revealed and a directed verdict is not appropriate.

Brooks, 231 Ga. App. at 655 (1) (b). Thus, as we have explained on numerous occasions, “[t]he existence of constructive knowledge is a matter for the jury when there is evidence from which it may be inferred.” (Citation and punctuation omitted.) Jackson, 239 Ga. App. at 178. Accordingly, in reviewing the denial of Kroger’s motions for directed verdict, we must determine whether, construing the evidence in favor of the verdict, there was any evidence from which the jury might make this inference. We answer that question in the affirmative.

A former Kroger employee testified that while she worked there, she had on other occasions observed water on the floor in the floral area. Further, there was evidence that it was anticipated that water would drip on the floor in that area as shoppers were taking the flowers out of vases. Several witnesses, including Kroger employees, testified that for this reason, nonskid floor mats were often used in floral areas, but it is undisputed that no evidence was presented to show that such mats were on the floor in the Store’s floral area on the day Melanie fell, although the evidence showed there may have been mats placed there on other days. Further, the fall occurred on a Saturday, which was one of the busiest, if not the busiest, time of the week in terms of customer volume. And not only did the fall occur on a busy weekend day, it occurred at approximately 6:45 in the evening, after an entire shopping day had passed during which Kroger could not show any employee had inspected or cleaned the area.

Although this evidence was far from overwhelming, we find that it provided a sufficient basis from which the jury could infer that the spill had been on the floor for a sufficient length of time such that the Store employees would have discovered it and cleaned it up had they been adhering to reasonable inspection procedures, and therefore Kroger had constructive knowledge of the hazard.

[W]e must remember that it is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.

Jackson, 239 Ga. App. at 178. Accordingly, and considering the gravity of a trial court’s substituting its own judgment for that of the jury, we find no error in the denial of Kroger’s motions for directed verdict. Id. at 176.

In so finding, we recognize the criticisms of the summary judgment standard for slip-and-fall cases established in Straughter v. J.H. Harvey Co., 232 Ga. App. 29 (500 SE2d 353) (1998), which principles have also been applied to motions for directed verdict. See Williams v. GK Mahavir, Inc., 314 Ga. App. 758, 763 (726 SE2d 71) (2012) (Andrews, J., concurring dubitante) (questioning reasoning of Straughter); Benefield, 308 Ga. App. at 612 (Blackwell, J., concurring dubitante) (same). In Straughter, this Court, sitting en banc, held that “a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” 232 Ga. App. at 30 (1). But we need not reconsider Straughter here because plaintiffs presented evidence from which the jury could infer Kroger’s constructive knowledge of the hazard: water dripping on the floor in the floral department was a recurrent problem, Kroger had on other occasions ameliorated the problem by placing mats on the floor to catch the water, and on the day Melanie fell, Kroger neither placed mats on the floor nor did it inspect for anticipated spills in the floral area at any point during the entire shopping day.

In light of the foregoing, we need not reach the issue of whether sufficient evidence existed to create a jury issue under the other method of proving constructive knowledge.

Judgment affirmed. Phipps,

C. J., Doyle, P. J., Dillard, McFadden and Boggs, JJ., concur. Andrews, P. J., dissents.

ANDREWS, Presiding Judge,

dissenting.

The Kroger Company was entitled to a directed verdict at trial because there was no evidence to support a reasonable conclusion by the jury: (1) that a Kroger employee was in the immediate area of the “clear liquid” which caused Ms. Schoenhoff to slip and fall and could have easily seen and removed it, or (2) that the “clear liquid” had been on the floor of Kroger’s store for a long enough period of time that it should have been discovered and removed by Kroger in the exercise of ordinary care to inspect the store premises to keep it safe. By denying Kroger’s motion for a directed verdict on this basis, the trial court erroneously allowed the jury to speculate or guess that Kroger had constructive knowledge of the liquid on the floor prior to the slip and fall.

Ms. Schoenhoff’s claim at trial was that, in violation of OCGA § 51-3-1, Kroger failed to exercise ordinary care to keep its store premises safe for her as an invited shopper, and that this failure caused her slip and fall.

To recover on a theory of premises liability [under OCGA § 51-3-1], a plaintiff must show injury caused by a hazard on an owner or occupier of land’s premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public.

American Multi-Cinema v. Brown, 285 Ga. 442, 444 (679 SE2d 25) (2009). In Robinson v. Kroger Co., 268 Ga. 735, 736-738 (493 SE2d 403) (1997), the Supreme Court reaffirmed that the fundamental basis for imposing liability for breach of the duty set forth in OCGA § 51-3-1 is proof that the premises owner had superior knowledge of the hazard on the premises that caused harm to the invitee. To prove that Kroger had superior knowledge, Ms. Schoenhoff had the burden of proving: (1) that Kroger had actual or constructive knowledge of the liquid which caused the slip and fall, and (2) that, despite exercising ordinary care for her own safety, she lacked knowledge of the liquid due to Kroger’s actions or conditions under its control. American Multi-Cinema, 285 Ga. at 444; Robinson, 268 Ga. 735; Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980). There was evidence sufficient for the jury to find that, despite exercising ordinary care for her own safety, Ms. Schoenhoff lacked knowledge of the liquid on the floor before she slipped and fell due to actions or conditions under Kroger’s control. As the majority points out, because there was no evidence that Kroger had any actual knowledge of the liquid on the floor before the slip and fall, the issue presented is whether Ms. Schoenhoff produced evidence at trial sufficient for the jury to find that, prior to the slip and fall, Kroger had constructive knowledge of the liquid on the floor. A plaintiff in a slip and fall case can prove that the premises owner had constructive knowledge of a hazard on the floor by showing: (1) that an employee of the defendant was in the immediate area of the hazard and could have easily seen the hazard and removed it prior to the slip and fall; or (2) that the hazard had been on the floor for a sufficient length of time that it would have been discovered and removed if the premises owner had exercised ordinary care to inspect the premises. Alterman Foods, 246 Ga. at 622-623; Kroger Co. v. Brooks, 231 Ga.App. 650, 654 (500 SE2d 391) (1998); Banks v. Colonial Stores, 117 Ga. App. 581, 584-585 (161 SE2d 366) (1968); Haskins v. Piggly Wiggly Southern, 230 Ga. App. 350, 352 (496 SE2d 471) (1998).

There was no evidence sufficient for the jury to find that a Kroger employee was in the area and could have easily seen and removed the hazard. Evidence showed that Ms. Schoenhoff slipped and fell near the floral department when she stepped in a puddle of “clear liquid” which she did not see on the floor prior to her fall. Ms. Schoenhoff explained that she did not see the clear liquid as she approached it because it blended with the white floor. There was also evidence that, about 25 feet away from where Ms. Schoenhoff fell, a Kroger employee was assisting shoppers at the store’s self-checkout scanners, and that there were no obstructions between the scanner area and the floral department. “Showing that an employee was merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it.” Matthews v. The Varsity, Inc., 248 Ga. App. 512, 513 (546 SE2d 878) (2001) (citation and punctuation omitted). We held as a matter of law in Matthews that, “Inasmuch as the purported hazard was not readily visible to Matthews, she did not establish that The Varsity’s employee who was 12 to 15 feet away could have easily seen and removed it.” Id. (citation and punctuation omitted). Similarly, in Haskins, 230 Ga. App. at 351-352, because Haskins conceded that the water which caused her to slip and fall was difficult to discern, we found as a matter of law that she failed to establish that a Piggly Wiggly employee in the immediate area could have easily seen and removed it. Id. at 351-352.

Constructive knowledge can only be inferred where there is evidence that an employee [of the defendant] was in the immediate vicinity of the dangerous condition and could have easily discovered and removed the hazard. The fact that [the plaintiff] admitted that the alleged dangerous substance was not visible precludes finding that the [defendant’s] employee could have easily noticed and corrected it.

Hardee’s Food Systems v. Green, 232 Ga.App. 864, 866-867 (502 SE2d 738) (1998). Because Ms. Schoenhoff admitted that the clear liquid in which she slipped and fell was not visible against the white floor as she approached it, as a matter of law, there was no reasonable basis for the jury to find that Kroger had constructive knowledge on the basis that its employee, working 25 feet away from the liquid, could have easily seen and removed it prior to the slip and fall. The trial court erred by denying Kroger’s motion for a directed verdict on this issue.

There was also no evidence sufficient for the jury to find that Kroger had constructive knowledge of the hazard on the basis that the liquid had been on the floor long enough so that Kroger should have discovered and removed it prior to the slip and fall in the exercise of ordinary care to inspect the premises. Although there was evidence that Kroger had in place procedures under which it normally inspected the premises for hazards every 30 minutes, there was also evidence from which the jury could have found that, on the day of the slip and fall, Kroger failed to exercise ordinary care to inspect the premises. Where a slip and fall plaintiff’s claim under OCGA § 51-3-1 is based on proving that the premises owner had constructive knowledge of a hazard on this basis, the plaintiff must produce evidence showing how long the hazard existed on the premises prior to the slip and fall..

To sustain plaintiff’s cause of action in the failure to inspect case it is necessary that she prove a period of time the dangerous condition has been allowed to exist. Without such proof, it would not be possible to determine whether the defendant had been afforded a reasonable time within which to inspect and remove the hazard. Banks[, 117 Ga. App. 581]. Winn-Dixie Stores, Inc. v. Hardy, [138 Ga. App. 342, 345 (226 SE2d 142) (1976)].

Brooks, 231 Ga. App. at 654 (1) (b) (punctuation omitted). Similarly, the Supreme Court has held:

[Although] the proprietor maybe liable if he fails to exercise reasonable care in inspecting and keeping the premises in safe condition[,] [t]o sustain a cause of action in [this] type case the plaintiff must show that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant. The length of time which must exist to show that the defendant had an opportunity to discover the defect will vary with the circumstances of each case[,] the nature of the business, size of the store, the number of customers, the nature of the dangerous condition and the store’s location.

Alterman Foods, 246 Ga. at 622-623 (citations and punctuation omitted).

Kroger had no burden at trial to produce evidence to demonstrate its lack of constructive knowledge of the liquid on the floor. Rather, Ms. Schoenhoff had the burden at trial to prove that Kroger had constructive (imputed) knowledge of the liquid. In the absence of any evidence as to how long the liquid had been on the floor, the jury in this case was left to speculate whether the liquid had been on the floor for a few minutes or for hours prior to the slip and fall. If the liquid had been on the floor for only a few minutes or less prior to the slip and fall, no jury could reasonably find that Kroger was afforded enough time to exercise ordinary care to inspect and remove the hazard prior to the slip and fall. It follows that, without any evidence as to how long the liquid had been on the floor prior to the slip and fall, there was no reasonable basis for the jury to find that Kroger had constructive knowledge of the liquid because it had been there long enough for Kroger to exercise ordinary care under OCGA § 51-3-1 to discover and remove it prior to the slip and fall. The trial court erred by allowing the jury to speculate or guess whether the liquid had been on the floor so long that Kroger had constructive knowledge. Compton v. Huddle House, 284 Ga. App. 367, 369 (644 SE2d 182) (2007); Dildine v. Town & Country Truck Sales, 259 Ga. App. 732, 734 (577 SE2d 882) (2003) (jury reliance on speculation or guesswork is an improper basis for imposing liability).

The record shows that Kroger moved for a directed verdict on the basis that there was no evidence in the case proving how long the liquid had been on the floor prior to the slip and fall. The majority concludes that the trial court correctly denied the motion because there was evidence from which the jury could have reasonably inferred that the liquid had been on the floor for a long enough period of time that Kroger had constructive knowledge of it prior to the slip and fall. Ms. Schoenhoff testified that she slipped and fell near a floral display case when she stepped in a puddle of “clear liquid” on the floor. She testified that she never determined what the liquid was but confirmed that it was not just droplets of liquid but a puddle. The majority points to the fact that one former Kroger employee testified that she had occasionally seen water on the floor of the floral department. And another Kroger employee agreed it could be anticipated that water would drip on the floor when shoppers took flowers out of vases in the floral department. But there was no evidence of any prior slip and fall on water or any other substance in or around the floral department. In fact, Ms. Schoenhoff testified that she had shopped in the Kroger store every two weeks for a couple of years prior to her slip and fall, and that, during that time, she had never before encountered water on the floor in or near the floral department. Although there was evidence from which the jury could have reasonably inferred that water had occasionally dripped on the floor in or possibly near the floral department, there was no evidence from which the jury could have reasonably inferred how long the puddle of “clear liquid” in this case had been on the floor before the slip and fall.

When a party relies on inferences from circumstantial evidence to prove a point, “not only must those inferences tend in some proximate degree to establish the conclusion sought, but must also render less probable all inconsistent conclusions.” Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 736 (639 SE2d 352) (2006) (citation and punctuation omitted). “An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” Niles v. Bd. of Regents of the Univ. System of Ga., 222 Ga. App. 59, 61 (473 SE2d 173) (1996) (citation and punctuation omitted).

However willing we are to commit to the jury the solution of every question of fact, yet in the very nature of things, when the determination of the issue rests not on direct proof, but on circumstances, there exists a point where the inferences to be drawn can not, as a matter of law, be sufficient to support a verdict.

Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 779 (257 SE2d 186) (1979) (citation, punctuation and footnote omitted). That point was reached in this case. To reach its verdict on the evidence presented, the jury was required to guess or speculate how long the liquid had been on the floor. There was no direct proof, and no circumstances, from which the jury could have reasonably found how long the liquid was on the floor prior to the slip and fall.

Decided November 12, 2013

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, Jennifer M. Guerra, for appellant.

Bondurant, Mixson& Elmore, NaveenRamachandrappa, Michael L. Neff, Darryl D. Adams, Andrew H. Speaker, for appellees.

Because there was no evidence produced at trial sufficient to prove that Kroger had superior constructive knowledge of the hazard, the trial court erred by denying Kroger’s motion for a directed verdict. I respectfully dissent.

       These principles devolve from OCGA § 51-3-1, which provides:
      Where an owner or occupier of land, hy express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

       Although Benefield involves a motion for summary judgment, our Court has held that in slip-and-fall cases, those principles also apply on motions for directed verdict. See Kroger Co. v. Brooks, 231 Ga. App. 650, 651 (500 SE2d 391) (1998) (“Both OCGA § 9-11-50 and § 9-11-56 which deal with motions for summary judgment, are similar and are governed by similar criteria, so that opinions as to one have application to the other.”). We further note that it does not appear from our record that Kroger filed a motion for summary judgment.

       As stated above, “[ejvidence establishing an adherence to customary inspection and cleaning procedures on the specific day in question is required, [and] proof of the mere existence of such customary procedures is insufficient.” (Citation and punctuation omitted.) Sanderson Farms, Inc. v. Atkins, 310 Ga. App. 423, 427 (713 SE2d 483) (2011).

       See Brooks, 231 Ga. App. at 651.

       Citing to Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (500 SE2d 353) (1998), Ms. Schoenhoff contends that, because Kroger failed to produce evidence at trial that it established and followed reasonable inspection procedures at the time of the incident, she had no burden at trial to show how long the liquid had been on the floor to prove that Kroger had constructive knowledge. Straughter adopted this rule in the context of summary judgment on the rationale that it was necessary to heed the Supreme Court’s admonition in Robinson, supra, to “lighten the load” on plaintiffs. Straughter, 232 Ga. App. at 32. Straughter held that, because the defendant failed to produce .evidence “that defendant followed a reasonable inspection and cleaning procedure, defendant can be charged with constructive knowledge even if plaintiff cannot show how long the substance had been on the floor.” Id. at 31. For reasons I have previously stated (see Straughter, 232 Ga. App. 29 (Andrews, C. J., dissenting); J. H. Harvey Co. v. Reddick, 240 Ga. App. 466 (522 SE2d 749) (1999) (Andrews, P. J., dissenting)) Straughter erroneously adopted this rule. In any event, the rule is limited to summary judgment and has no application at trial where the burden of proof as to constructive knowledge remains on the plaintiff, and the defendant has no burden to prove lack of constructive knowledge.