author: Phipps, Chief Judge.

text:
    A14A2210.
    ARCHER FORESTRY, LLC et al. v. DOLATOWSKI.
    (771 SE2d 378)
   Phipps, Chief Judge.

Mary Jean Franklin Dolatowski sustained injuries when the vehicle she was driving collided with a vehicle being driven by Steven Ray Archer. At the time of the collision, at about 2:00 p.m. on November 20, 2008, Archer was driving home in his employer’s vehicle. In her ensuing tort action, Dolatowski named numerous defendants, including Archer and his employer, Archer Forestry, LLC (collectively, the Archer Defendants). Dolatowski claimed that the Archer Defendants were liable to her under theories of negligence.

The Archer Defendants filed a joint motion for summary judgment. Therein, they challenged Dolatowski’s claims for punitive damages on the ground that she had failed to adduce sufficient evidence therefor; alternatively, they sought a ruling that, given the evidence adduced, any award of punitive damages must be statutorily capped. Contesting liability, Archer Forestry argued that there was no evidence to support a finding of respondeat superior; and both defendants argued that Dolatowski was barred from any recovery due to her own (alleged) negligent driving and failure to avoid the consequences of their (alleged) negligence. The trial court entered a detailed order, rejecting the Archer Defendants’ arguments that the evidence failed to justify punitive damages and failed to show respondeat superior. The court made no ruling, however, as to their remaining two challenges.

In this appeal, the Archer Defendants maintain that they were entitled to rulings in their favor on each ground asserted. For reasons that follow, we reverse the rulings made by the trial court and remand the case for proceedings not inconsistent with this opinion.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “Thus, to prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law.” “In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

1. The Archer Defendants contend that the trial court erred by concluding that they were not entitled to summary judgment on Dolatowski’s claims for punitive damages, maintaining that Dolatowski failed to adduce evidence that would authorize such an award.

Pursuant to OCGA § 51-12-5.1 (b),

[p] unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

Citing that statutory provision, the Supreme Court of Georgia has espoused:

Something more than the mere commission of a tort is necessary for the imposition of punitive damages. Negligence alone, even gross negligence, is insufficient to support punitive damages. Punitive damages cannot be imposed without a finding of culpable conduct based upon either intentional and wilful acts, or acts that exhibit an entire want of care and indifference to consequences.

Accordingly, this court has held, “[i]n cases involving automobile collisions, punitive damages are authorized when the accident results from a pattern or policy of dangerous driving, such as excessive speeding or driving while intoxicated, but not when a driver simply violates a rule of the road.”

Countering the Archer Defendants’ challenge, Dolatowski presented an accident reconstructionist’s opinion that, immediately before impact, Archer was traveling approximately 48-51 miles per hour in a 45 miles per hour zone. Additionally, Dolatowski cited evidence that, when the collision occurred, Archer was talking on his cell phone, which she maintains showed that Archer was a distracted driver.

We agree with the Archer Defendants. Construed in Dolatowski’s favor, the evidence fell short of providing a basis for an award of punitive damages against either of them. Accordingly, the trial court’s ruling that the Archer Defendants were not entitled to judgment as a matter of law on Dolatowski’s claims for punitive damages is reversed.

2. Our holding in Division 1 renders moot the Archer Defendants’ contention that the trial court erred by failing to cap punitive damages at $250,000 under OCGA § 51-12-5.1 (g).

3. Archer Forestry contends that the trial court erred when it failed to grant summary judgment on the issue of respondeat superior, maintaining that Dolatowski failed to adduce evidence from which a jury could find that Archer was in the course and scope of his employment at the time of the collision. We agree.

As explained in Allen Kane’s Major Dodge v. Barnes, “[w]hen a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master.”

Where a tort occurs as a result of a vehicle collision in which the employee was driving his employer’s vehicle, . . . the employer’s liability must be analyzed under the burden-shifting framework espoused by the Supreme Court of Georgia in Allen Kane’s Major Dodge. [] Under this framework, a presumption arises that the employee was acting in the course and scope of his employment at the time of the collision, and the burden is then on the employer to show otherwise. An employer may overcome this presumption as a matter of law by presenting uncontradicted evidence showing that the employee was not acting in the course and scope of his employment. The employer is thereafter entitled to summary judgment unless other facts are proffered . . . from which a jury could reasonably infer that the employee was acting within the course and scope of his employment when the accident occurred.

Here, it was uncontested that Archer was driving his employer’s vehicle at the time of the collision. But Archer Forestry rebutted the presumption that thereby arose, citing evidence that when the collision occurred at about 2:00 p.m., Archer was driving home. “As a general rule, a servant in going to and from his work in an automobile acts only for his own purposes and not for those of his employer, and consequently the employer is not to be held liable for an injury occasioned while the servant is en route to or from his work.” As Archer recounted during his deposition, his son was in the car at the time; earlier that day, he had picked up his son from middle school, and taken him to an appointment with a pediatrician; the two of them had left the doctor’s office at about 1:30 p.m. When the collision occurred, Archer recounted, he was on his cell phone with his wife, discussing their son’s doctor’s visit.

Dolatowski maintains that she nevertheless created a factual issue regarding respondeat superior with evidence showing that, within the 25 minutes prior to the collision, Archer used his cell phone to make calls relating to his employer’s business. Additionally, she cites evidence that at about 2:48 p.m. on the day in question, Archer again used his cell phone to make a call relating to his employer’s business, which call lasted a few minutes. (But Archer deposed that he did not recall whether he was still at the scene of the accident at the time of that call.)

Even so, the evidence cited by Dolatowski created nothing for a jury to decide. Contrary to cases such as Hunter v. Modern Continental Constr. Co. and Clo White Co. v. Lattimore, there was no evidence, or even an assertion, that Archer was on a business call at the time of the collision.

Decided March 27, 2015.

Carlock, Copeland & Stair, Frederick M. Valz III, L. Elizabeth Albright, The Godsey Firm, J. Gregory Godsey, for appellants.

Jenkins & Bowen, Frank E. Jenkins III, Robert L. Walker, for appellee.

Given the foregoing,

[t]he evidence in the instant case demands the conclusion that, at the time of the collision complained of, [Archer] was using [Archer Forestry’s] automobile for a purely personal mission of his own ... , in no way connected with the business of [Archer Forestry], and not within the scope of his employment.

Archer Forestry was therefore entitled to summary judgment on the issue of respondeat superior. The trial court’s ruling holding otherwise is reversed.

4. The Archer Defendants contend that, pursuant to OCGA § 51-11-7 and cases such as Weston v. Dun Transp. & Stringer, they were entitled to summary judgment on the ground that Dolatowski’s own (alleged) negligence barred any recovery against them. While this ground was argued to the trial court, the court made no ruling thereon in its detailed order. And “we decline to address the[ ] ground [ ] on appeal because [it was] not ruled upon by the trial court.”

This case is hereby remanded to the trial court so that it may address the remaining ground advanced by the Archer Defendants.

Judgment reversed and case remanded.

Ellington, P. J., and McMillian, J., concur.

       This is a cross-appeal to Dolatowski v. Eagle Rock Distributing Co., 331 Ga. App. XXIV (Case No. A14A2174) (March 27, 2015), which affirmed without opinion, under Court of Appeals Rule 36, the grants of summary judgment motions filed by other defendants.

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citations and punctuation omitted).

       Id. at 624 (1) (a) (citation and punctuation omitted); see Norton v. Budget Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (we review the denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party).

        MDC Blackshear v. Littell, 273 Ga. 169, 173 (4) (537 SE2d 356) (2000) (footnote omitted).

        Lindsey v. Clinch County Glass, 312 Ga. App. 534, 535 (718 SE2d 806) (2011) (emphasis supplied).

       See Mastec North America v. Wilson, 325 Ga. App. 863, 867-868 (755 SE2d 257) (2014) (determining that evidence that the driver was talking on his cell phone at the time of the accident and that he thereafter pled guilty to a traffic violation “too fast for conditions” was insufficient to support an awardfor punitive damages); Lindsey, supra at 534-535 (determining that plaintiff could not recover punitive damages against driver who admittedly caused accident due to being distracted while looking up a number on his cell phone, where there was no evidence that driver had a history of distraction-related accidents and there was no evidence showing a pattern of dangerous driving or other aggravating circumstances). Cf. Langlois v. Wolford, 246 Ga. App. 209, 210 (1) (539 SE2d 565) (2000) (determining that punitive damages were authorized, where the driver left the scene of an accident, was intoxicated, and had a history of prior DUIs and traffic violations).

       Supra.

       243 Ga. 776 (257 SE2d 186) (1979).

       Id. at 777 (citation omitted).

       Supra.

        Mastec North America v. Sandford, 330 Ga. App. 250, 254-255 (1) (765 SE2d 420) (2014) (citation omitted).

        Chattanooga Publishing Co. v. Fulton, 215 Ga. 880, 883 (3) (114 SE2d 138) (1960) (citations and punctuation omitted); see Mastec North America, supra, 330 Ga. App. at 254 (1) (“Generally, an employee traveling to or from work is not in the course of his employment hut rather is engaged in a personal activity.”) (citation and punctuation omitted); Jones v. Aldrich Co., 188 Ga. App. 581, 583 (1) (373 SE2d 649) (1988).

       See Mastec North America, supra, 330 Ga. App. at 255-256 (1) (reiterating that to overcome summary judgment motion on the issue of respondeat superior, the plaintiff “must show that [the defendant-employee] was acting within the scope of his employment at the time of the accident”) (emphasis in original); Farzaneh v. Merit Constr. Co., 309 Ga. App. 637, 640, n. 3 (710 SE2d 839) (2011) (reasoning that the evidence — that the employee had a company-issued cell phone with him at the time of collision, that he kept at least one company tool in his vehicle, and that he may have had a “vehicle allowance” — was insufficient to create respondeat superior liability for the employer, where the employee “was not using his [company] -issued cell phone when the collision occurred”); Braddy v. Collins Plumbing & Constr., 204 Ga. App. 862-865 (420 SE2d 806) (1992) (affirming summary judgment to employer due to insufficient evidence to support a finding of respondeat superior liability, despite evidence that employee was driving a company-owned truck in which a two-way radio was installed for communicating during the work day with the job site). Accord Short v. Miller, 166 Ga. App. 265, 266 (304 SE2d 434) (1983) (stating that the mere fact that the employee was “on call” did not constitute evidence that he was in the service of his employer when the collision occurred).

         287 Ga. App. 689 (652 SE2d 583) (2007) (where evidence showed that, at the time of the accident, the employee may have been on a work-related cell phone call or distracted by such a call that he chose not to answer, a jury question remained as to the employer’s liability for its employee’s actions).

       263 Ga. App. 839, 840 (590 SE2d 381) (2003) (holding that a jury question was created as to the employer’s potential liability for its employee’s actions, where evidence “supported] the conclusion that [the employee] may have actually been on the phone regarding matters of company business at the time of the accident”) (emphasis in original).

        Chattanooga Publishing Co., supra.

       See Cowart, supra; Mastec North America, supra, 330 Ga. App. at 254-257 (1); Farzaneh, supra; Braddy, supra.

       304 Ga. App. 84 (695 SE2d 279) (2010).

       The Archer Defendants asked for a ruling in their favor in their motion for reconsideration, but the court did not rule on that motion before the Archer Defendants perfected this appeal. See generally Becker v. Fairman, 167 Ga. App. 708, 709 (1) (307 SE2d 520) (1983) (“[A] motion for reconsideration does not extend the time for filing a notice of appeal.”).

        Medical Center of Central Ga. v. Macon, 326 Ga. App. 603, 607 (2) (757 SE2d 707) (2014), citing inter alia, City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002).

       See City of Gainesville v. Dodd, supra; Medical Center of Central Ga., supra.


source: Caselaw Access Project

author: Doyle, Presiding Judge. DILLARD, Judge,

license: Public Domain

text:
    A14A1786.
    KENDRICK v. THE STATE.
    (769 SE2d 621)
   Doyle, Presiding Judge.

In a jury trial, Stephen Kendrick was found guilty of aggravated child molestation, statutory rape, child molestation, contributing to the delinquency of a minor, and criminal trespass. He appeals from the denial of his motion for new trial, challenging the sufficiency of the evidence as to the aggravated child molestation count on the ground that there was no physical injury to the victim. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence.” So viewed, the record shows that Kendrick, a 32-year-old man, approached the victim’s father at a gas station seeking a ride. Kendrick then explained that he had nowhere to go, and the father allowed Kendrick to work at his store and stay in the basement of his home, where he lived with his wife and children, including his 13-year-old daughter, L. F. After Kendrick appeared to grow closer to L. F, the father asked Kendrick to leave. A few weeks later, L. F. ran away from her home and stayed with Kendrick at his sister’s or at an apartment. Kendrick had intercourse with L. F., and they later learned that she was pregnant after L. F. was located by police, and her mother took her to the hospital for an evaluation. L. F. carried the baby to term and delivered a healthy boy.

Kendrick did not dispute his paternity of the child, and he was subsequently charged with aggravated child molestation, statutory rape, child molestation, interference with custody, contributing to the delinquency of a minor, and criminal trespass. Following a jury trial, he was found guilty of each count except for interference with custody. Kendrick’s motion for new trial was denied, giving rise to this appeal.

Kendrick contends that the evidence was insufficient to support his conviction for aggravated child molestation because there was no evidence of a physical injury caused by the act of having intercourse with the victim. OCGA § 16-6-4 (c) defines the offense as follows: “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation [e.g., an immoral or indecent act to any child under the age of 16] which act physically injures the child or involves an act of sodomy.” There was no evidence at trial of an act of sodomy; therefore, the State had the burden to prove that Kendrick’s molestation caused a physical injury to the victim.

The evidence in the case was somewhat unusual in that there was no physical exam near in time to the molestation, and the victim, who believed she was in a romantic relationship with Kendrick, did not testify that the intercourse was physically forceful, painful, or otherwise physically injurious. Thus, there was no evidence presented depicting the physical injuries one might expect in a case such as this. Perhaps because of these peculiar facts, the indictment alleged, and the State argues on appeal, that Kendrick caused an injury as follows:

Stephen Troy Kendrick [is accused of] aggravated child molestation ... for [that] said accused . . . did unlawfully commit an immoral and indecent act to, with and in the presence of [the victim], a child under the age of sixteen (16) years, by engaging in sexual intercourse with [the victim], with intent to arouse and satisfy his sexual desires; said act involving physical injury to said child by impregnating her causing said child to endure childbirth; [ ]contrary to the laws of [Georgia]. . . .

OCGA § 16-6-4 does not define what “physically injures” means, and we have found no Georgia case law explicitly defining the term in this context, so

we must turn to the basic rules of statutory construction. Specifically, we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. At the same time, we must seek to effectuate the intent of the legislature.

According to Black’s Law Dictionary (6th ed. 1990), the term “injury” means “any wrong or damage done to another, either in his person, rights, reputation, or property,” and more specifically, “bodily injury” means “[pjhysical pain, illness [,] or any impairment of physical condition.” It is axiomatic that a full-term pregnancy involves at least some impairment of physical condition, and furthermore, there was evidence in this case that the victim experienced pain during the two-day labor and delivery process. So by the above definitions, the record supports a finding of a physical injury to the victim caused by the molestation.

Furthermore, courts in other jurisdictions have held that pregnancy constitutes physical harm, concluding with “no trouble . . . that pregnancy and childbirth resulting from [non-consensual sexual conduct] constitute physical injury” to the victim. In this case, the underage victim’s professed desire to endure the pregnancy and deliver the baby is of no moment because of her legal incapacity to consent to the intercourse.

In light of these accepted views of physical injury in the present context, we conclude that the record here supported a finding that Kendrick’s victim was physically injured by the molestation. Accordingly, his enumeration is without merit, and we affirm his conviction.

Judgment affirmed.

Miller, J., concurs. Dillard, J., concurs fully and specially.

DILLARD, Judge,

concurring fully and specially.

In life and in law, context is often crucial; and in this case, context is extremely important. Suffice it to say, as a general matter, it would be highly unusual (and indeed offensive) to refer to a woman’s pregnancy as a “physical injury.” Such a characterization would not only be rightly perceived as demeaning to the mother, but also as an attempt to dehumanize her unborn child. The question before us, however, does not concern a mother’s decision to carry her child to term, but is instead whether a man who molests a young girl and impregnates her as a result of that evil act should be deemed to have “physically injured” her within the meaning of OCGA § 16-6-4 (c) (i.e., the aggravated child molestation statute). And like the majority, I answer that question in the affirmative.

As the majority correctly notes, OCGA § 16-6-4 does not define what “physically injures” means, and there is no precedent established by this Court or our Supreme Court defining the term in this particular context. The question, then, is whether a fair reading of the relevant statutory language, “physically injures,” encompasses the physical changes and conditions associated with a pregnancy caused by child molestation. And like the majority, my analysis necessarily begins with familiar and binding canons of statutory construction. In this respect, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant,” which means that we “must afford the statutory text its plain and ordinary meaning, consider the text contextually, and read the text in its most natural and reasonable way, as an ordinary speaker of the English language would.”

Here, I agree with the majority that a fair reading of “physically injures,” in this unique statutory context, includes the physical changes and conditions associated with a pregnancy resulting from child molestation. Indeed, in addition to the definitions offered by the majority, The Oxford English Dictionary defines “injure” as “[tjo do hurt or harm; to inflict damage or detriment upon; to hurt, harm, damage; to impair in any way.” And as the majority aptly notes, “[i]t is axiomatic that a full-term pregnancy involves at least some impairment of physical condition[.]” Thus, I have no reservations in joining the majority’s conclusion that the physical changes and conditions experienced by a woman as a result of a pregnancy caused by child molestation constitute a “physical injury” within the meaning of OCGA § 16-6-4 (c).

Decided March 13, 2015

Reconsideration denied March 30, 2015

Richard W. Marks, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

I fully concur, then, with the majority’s opinion, and as such, it may be cited as precedential authority in future cases. I do so, however, with the understanding that our characterization of the physical changes and conditions associated with a pregnancy caused by child molestation as a “physical injury” is limited to this unique statutory context (i.e., as a basis for an enhanced criminal penalty against a child molester). Nothing in this opinion may be used to deny a mother or her unborn child any rights, protections, or privileges that they would otherwise be entitled to under state or federal law.

       OCGA § 16-6-4 (a) (1), (c). The statutory rape and child molestation counts merged with this count for purposes of sentencing.

       OCGA § 16-6-3 (a).

       OCGA § 16-6-4 (a) (1).

       OCGA § 16-12-1 (b) (1).

       OCGA § 16-7-21 (b) (2).

        Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       (Emphasis supplied.)

       Notably, during deliberations the jury asked the trial court whether “childbirth [is] an injury under the aggravated child molestation [statute]?” With the parties’ agreement, the court stated that this was a factual issue for resolution by the jury. This characterization is not challenged on appeal.

       Compare, e.g., Mangham v. State, 291 Ga. App. 696, 697 (662 SE2d 789) (2008) (“The victim’s testimony indicating the molestation was painful sufficed to prove the element of physical injury.”) (punctuation omitted); Bell v. State, 294 Ga.App. 779, 780 (1) (670 SE2d 476) (2008) (“[T]he [victim] testified to her age of 13 at the time of the incident, to [the defendant’s] forcible act of intercourse upon her, and to her pain and bleeding from the act;... and the nurse testified to the injuries to the girl’s hymen and vaginal area resulting from penetration.”).

       See generally Fluker v. State, 248 Ga. 290, 293 (2) (282 SE2d 112) (1981) (noting a possible legislative intent in passing an anti-pandering statute as “protecting young females from physical injury or from the loss of‘chastity’ ”); Barnes v. State, 244 Ga. 302, 304 (1) (260 SE2d 40) (1979) (noting that carnal knowledge can cause physical injury and pregnancy to “previously chaste” underage girls). Compare Hightower v. State, 256 Ga. App. 793, 795 (570 SE2d 22) (2002) (in the context of a cruelty to children charge, finding insufficient evidence of mental pain caused to a minor who described her physical experience of pregnancy and childbirth only as “good pain”).

       (Punctuation omitted.) State v. Mussman, 289 Ga. 586, 588 (1) (713 SE2d 822) (2011).

       See United States v. Asberry, 394 F3d 712, 717 (II) (9th Cir. 2005) (statutory rape is a “crime of violence” because “physical risks of pregnancy among adolescent females are ‘injuries’ as the term is defined in common and legal usage”), quoting Oxford English Dictionary (2d ed. 1989); United States v. Shannon, 110 F3d 382, 388 (7th Cir. 1997) (“Pregnancy resulting from rape is routinely considered a form of grave bodily injury.”), abrogated on other grounds by Begay v. United States, 553 U. S. 137, 148 (II) (B) (2) (128 SCt 1581, 170 LE2d 490) (2008); State v. Gonzales, 2011 Ariz. App. Unpub. LEXIS 94 (Ariz. Ct. App. 2011) (physical precedent only) (“An unwanted pregnancy constitutes physical harm.”); State v. Jones, 889 SW2d 225, 231 (III) (Tenn. Crim. App. 1994) (unwanted pregnancy is “personal injury”); People v. Sargent, 86 Cal. App. 3d 148, 151 (1978) (“Pregnancy resulting from rape is great bodily injury.”).

        Fenelon v. State of Florida, 629 S2d 955, 956 (1993).

       See generally Loyd v. State, 288 Ga. 481, 492 (4) (c), n. 8 (705 SE2d 616) (2011) (noting the age - 16 - at which a minor can legally consent to certain sexual acts); Shannon, 110 F3d at 388 (“To the extent that a 13 year old is incapable of appreciating the full risk and consequences of sexual intercourse, her ensuing pregnancy and parturition (or abortion) must be considered at least quasi-involuntary and could well he considered, therefore, a physical injury even if the pregnancy is normal.”).

        See State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies ... Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 33 (1st ed. 2012) (describing and endorsing the “Fair-Reading Method” of interpreting statutes-i.e., “determining the application of a governing text to given facts on the basis of how a reasonable reader, fully competent in the language, would have understood the text at the time it was issued.”).

        Martinez v. State, 325 Ga. App. 267, 273 (750 SE2d 504) (2013) (citation and punctuation omitted); accord Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013).

       The Compact Oxford English Dictionary 851 (2d ed. 1991).

        See United States v. Shannon, 110 F3d 382, 388 (7th Cir. 1997) (noting that pregnancy can involve, among other things, “morning sickness, fatigue, edema, back pain, weight gain . . .”); People v. Sargent, 150 CalRptr 113, 116 (1) (1978) (noting that “[m]ajor physical changes begin to take place at the time of pregnancy,” which “involves a significant bodily impairment primarily affecting a woman’s health and well being.”).

        See People v. Cathey, 681 NW2d 661, 666 (II) (C), n. 5 (Mich. App. 2004) (noting “the importance of the circumstances in which this issue is discussed,” and that “[o]utside the instant context, i.e., a pregnancy resulting from an illegal act, it may seem peculiar to consider [the conditions of] pregnancy to [constitute] a bodily injury” because “pregnancy is a wonderful event that is celebrated as one of life’s greatest gifts.”).


text:
    A12A1951.
    SEWELL et al. v. CANCEL et al. FAULK et al. v. CANCEL et al.
    A12A1952.
    (771 SE2d 388)
   Phipps, Chief Judge.

After the anesthesiology department of a hospital underwent a restructuring, four anesthesiologists who had been working there under their practice group were not selected for continued employment. Alleging that they had been wrongfully terminated because they had voiced concerns of fraudulent billing practices by fellow anesthesiologists, the four anesthesiologists —Angel Cancel, M.D., Pravin Jain, M.D., Grace Duque-Dizon, M.D., and Monajna Sanjeev, M.D. — filed suit. Included amongst the defendants they named, as have since been grouped by the litigating parties, were: (a) Alvin Sewell, M.D., Sanjiwan Tarabadkar, M.D., and Miles H. McDonald, M.D.; and (b) Louis Goolsby, M.D., A. Donald Faulk, and The Medical Center of Central Georgia, Inc. (“The Medical Center”).

In our decision at Cancel v. Sewell, we reviewed several rulings on various defendants’ motions for summary judgment. And for reasons explained therein, we affirmed the judgment in Case No. A12A1950; we reversed in part the judgment in Case No. A12A1951, while dismissing that case in part; and we dismissed Case No. A12A1952. The dismissals were based on our determination that this court lacked jurisdiction of an order that had been entered after the filing of the original notice of appeal. In Sewell v. Cancel, the Supreme Court of Georgia concluded that jurisdiction had been perfected as to that order, and thus reversed our decision otherwise and remanded Case Nos. A12A1951 and A12A1952 to us for further proceedings. Accordingly, we vacate Divisions 7 and 9 of our decision at Cancel v. Sewell, which divisions pertained to Case Nos. A12A1951 and A12A1952. Because the remainder of our opinion at Cancel v. Sewell is not inconsistent with the Supreme Court’s decision, it stands unchanged. Therefore, much of the factual and procedural background detailed in that opinion need not be repeated here.

In the order at issue at this juncture, the trial court denied two joint motions for summary judgment. In both motions, the respective defendants had challenged claims that sought to hold them liable on theories of breach of fiduciary duty and fraud. Disposing of those motions, the trial court summarily stated in its order that “there are genuine issues of material facts as to whether the . . . Plaintiffs are entitled to relief for their fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty claims.” For reasons explained below, we reverse the judgment in Case No. A12A1951 and vacate the judgment in Case No. A12A1952 and remand that case to the trial court.

Case No. A12A1951

Sewell, Tarabadkar, and McDonald challenge the denial of their joint motion for summary judgment on Counts 4 and 5 of the amended complaint, concerning allegations of breach of fiduciary duty and fraud. Countering that challenge, the plaintiffs recite an allegation of their amended complaint:

Defendants Goolsby, Faulk, and [The Medical Center] engaged in a conspiracy along with Defendants Sewell, Tarabadkar and McDonald which resulted in the constructive dissolution of [Central Georgia Anesthesia Services, PC. (CGAS)] and the termination of CGAS contractual relations for anesthesiology services with [The Medical Center], and the establishment of a new group of anesthesiologists providing services to [The Medical Center] under the name of The Nexus Medical Group, LLC, which excluded the Plaintiffs.

1. Conspiracy. As a preliminary matter, we note that “Georgia law does not recognize an independent tort of ‘conspiracy.’ ” As the Supreme Court of Georgia has espoused:

A conspiracy is a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means. Accurately speaking, there is no such thing as a civil action for conspiracy. There is an action for damages caused by acts pursuant to a formed conspiracy, but none for the conspiracy alone.

Therefore, “[i]f no cause of action is otherwise alleged, the addition of allegations concerning conspiracy will not make one; but, where a cause of action is alleged, the fact of conspiracy, if proved, makes any actionable deed by one of the conspirators chargeable to all.”

In their appellate briefs, the plaintiffs maintain that they adduced evidence of the torts of breach of fiduciary duty and fraud.

2. Breach of Fiduciary Duty. The plaintiffs claim, “There was a breach of fiduciary duty by Sewell, Tarabadkar, and McDonald because they appropriated the assets of CGAS for the benefit of NEXUS, to the exclusion of Plaintiffs.”

The gravamen of the plaintiffs’ claim is that Sewell, Tarabadkar, and McDonald breached their fiduciary duties and usurped CGAS’s corporate opportunities available through CGAS’s contract with The Medical Center, whereby only CGAS would provide anesthesiology services to The Medical Center’s hospital in Macon. Each of the four plaintiffs was a director and shareholder of CGAS; each of the four plaintiffs had an employment agreement with CGAS, and thereby practiced medicine at The Medical Center’s hospital. However, the contract between CGAS and The Medical Center required that all CGAS physicians voluntarily resign from the medical staff of The Medical Center upon termination of that contract for any reason. Similarly, each employment contract required the CGAS physician to resign from the staff of The Medical Center upon termination of employment with CGAS.

“[A] claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.” Even accepting, arguendo, that the plaintiffs were not required to bring a derivative suit, we agree with Sewell, Tarabadkar, and McDonald that the plaintiffs failed to adduce evidence of an essential element of their claim.

Sewell, Tarabadkar, and McDonald argued at the summary judgment hearing that the plaintiffs had failed to show any breach. In particular, these defendants asserted that the termination of CGAS’s contract with The Medical Center had not been procured by any breach of fiduciary duty, but was the intended result of a decision made by the CGAS’s directors/shareholders, who had been confronted with an unexpected action taken by The Medical Center. Evidence of that action was set forth in our earlier opinion:

Faulk (as President/CEO of The Medical Center) sent a letter dated April 25, 2003 to Cancel (as CEO of CGAS), advising that, due to the allegations raised about and by certain CGAS representatives, including behavioral issues and fraudulent billing practices, The Medical Center was intending to cancel its contract with CGAS, effective May 31, 2003, pursuant to the contract’s “with cause” clause, unless CGAS demonstrated by that date that it was in substantial compliance with the contract. The April 25 letter demanded that CGAS promptly retain a qualified independent consulting firm, subject to The Medical Center’s approval of both the firm and its audit protocol, to conduct an audit of CGAS’s billing practices and report the findings thereof to CGAS and to The Medical Center.
Additionally, the April 25 letter announced The Medical Center’s intent to restructure its anesthesiology department effective February 29, 2004, even if CGAS demonstrated its compliance with their contract on or before May 31, 2003. And the letter informed CGAS that, beginning May 12, 2003, The Medical Center would begin a “recruitment process for staff anesthesiology positions” and those hired would become its “employees or independent contractors.” The letter outlined that any CGAS physician intending to provide services in the restructured anesthesiology department should promptly submit an application and that, although The Medical Center could not guarantee that any member of CGAS would be offered a contract of employment within the restructured department, The Medical Center would evaluate each application “fairly, objectively and on its individual merits.”

Counsel for Sewell, Tarabadkar, and McDonald posited at the summary judgment hearing that The Medical Center’s action had left the CGAS physicians with essentially

two choices[:] Prove billing compliance and we’ll leave you in place until February 29. If you don’t prove it, you’re out May 31, which is a very short time to go find another job. . . . And, so, it wasn’t that they had a lot of choice. I mean my people [Sewell, Tarabadkar, and McDonald] didn’t have it either.

Counsel then cited evidence that, within a few days of receiving Faulk’s letter, the CGAS directors/shareholders convened a meeting, ultimately deciding that CGAS would terminate its contract with The Medical Center effective August 31,2003. Evidence of CGAS’s response was detailed in our earlier opinion:

[A]t a CGAS shareholders and directors meeting on April 29, 2003, the attendees discussed a corporate dissolution. Sewell represented that a dissolution would serve to remove any encumbrances that might stand in the way of the hospital’s restructuring and allow the hospital to negotiate contracts with the individuals of the group. At a May 5, 2003 CGAS shareholders and directors meeting, a proposal was unanimously passed that the CGAS contract with The Medical Center would terminate on August 31, 2003.

The minutes from that May 5 meeting reveal that CGAS had its corporate counsel and compliance counsel present, and that CGAS’s corporate counsel had proposed at the start of the meeting that CGAS’s contract with The Medical Center, as well as all physician employment contracts with CGAS, be terminated effective August 31, 2003, so as to avoid earlier termination for cause.

After that meeting, as the evidence showed, many of the CGAS physicians — including the plaintiffs — submitted applications to work in the restructured department. While eight CGAS physicians received offers to join the restructured department, the plaintiffs did not.

Directors and officers of corporations must discharge their duties in good faith and with the care of an ordinarily prudent person in similar positions. “Good faith is not just a question of what is proper for the corporation. It also requires that the stockholders be treated fairly and that their investments be protected.”

We agree with Sewell, Tarabadkar, and McDonald that these actions by the CGAS directors/shareholders (including these three defendants) amounted to an exercise of their business judgment, based upon facts available at the time and the advice of counsel; and that the plaintiffs failed to cite any evidence that Sewell, Tarabadkar, and/or McDonald, nevertheless, breached a fiduciary duty in connection with the termination of CGAS’s contract with The Medical Center. The plaintiffs rely on Quinn v. Cardiovascular Physicians, PC., wherein the Supreme Court of Georgia held that a jury should resolve allegations of misappropriation of business opportunity and breach of fiduciary duty. But Quinn is distinguishable. In that case, Quinn sued a professional corporation and her two former associates for, inter alia, the misappropriation of business opportunity and violation of fiduciary duties. Quinn and her two associates — all physicians — had formed their corporation in April 1982 as equal shareholders. About two months afterward, in June 1982, Quinn negotiated a one-year contract with a hospital authority, whereby the corporation would provide cardiology services to the hospital authority. But five months later, Quinn was given notice of a meeting of shareholders and directors, which was called for the purpose of terminating her status as an officer and employee of the corporation. Quinn tendered her resignation as an officer and director, but indicated that she wished to continue working as an employee under the corporation’s agreement with the hospital authority. Neither of the other two shareholders responded; nor did they subsequently allocate to Quinn any portion of the corporation’s accounts receivable, which had mounted to $138,475 in December 1982. Meanwhile, the two shareholders resolved to terminate all the activities of the corporation; next, they formed a second corporation; then, “through their officers as directors and shareholders of the first corporation, transferred all assets of the first corporation to the new corporation.” Quinn received no notice of any of these matters. On August 1, 1983, the new corporation signed a contract for services with the same hospital authority. Throughout this time, the two shareholders had remained as officers and directors of the first corporation.

When sued by Quinn, the two shareholders contended that there was no business opportunity to be appropriated, positing that the first corporation had become unable to provide cardiovascular services to the hospital authority. This contention was rejected by the Supreme Court, which determined that the record authorized a jury to find that

this claimed inability was nothing more than the result of the refusal by [the two shareholders] to perform medical services on behalf of the first corporation. . . . A jury might find that, through means of such refusal, [those two shareholders] purposefully destroyed the expectation of renewal which rightfully belonged to the first corporation — all in violation of their duty to it and to Quinn as minority shareholder.

And with respect to the allegation of breach of fiduciary duty, the Court cited evidence that the assets of the first corporation had been “alienated ... in secret; Quinn was notified of nothing”; the Court explained that a jury might determine that the defendants had “pirated away all the assets of the first corporation,” leaving it as “an empty shell, and Quinn’s shares in it but a scrap of paper — all in violation of their duties of good faith.”

Those circumstances which gave rise to triable issues in Quinn were not shown in the instant case. Despite their claim, plaintiffs failed to evince their theory that Sewell, Tarabadkar, and/or McDonald breached a fiduciary duty by “appropriat[ing] the assets of CGAS for the benefit of NEXUS, to the exclusion of Plaintiffs.” Consequently, Sewell, Tarabadkar, and McDonald were entitled to summary judgment on the claim of breach of fiduciary duty.

3. Fraud. The plaintiffs claim, “The fraudulent scheme here was to induce the CGAS physicians to vote to terminate [The Medical Center]/CGAS contract themselves so that the Plaintiffs could be terminated without the procedural protections of the medical staff bylaws and the contractual rights provided by their individual contracts with CGAS.”

“The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff.” At the summary judgment hearing, counsel for Sewell, Tarabadkar, and McDonald argued that the plaintiffs had failed to adduce any evidence of a false representation.

Although the plaintiffs maintain that they were duped into voting to terminate CGAS’s contract with The Medical Center, they have pointed to no evidence to support that claim. Moreover, the record shows that when the plaintiffs signed their respective employment agreements with CGAS, they each also executed a resignation document that was held in escrow by CGAS, in which they expressly relinquished upon termination “all due process rights” under The Medical Center’s bylaws. The employment agreements provided that the resignation documents would be tendered to The Medical Center upon termination of the physicians’ employment for any reason. As such, plaintiffs were aware of these ramifications when they voted to terminate CGAS’s contract with The Medical Center. Because the plaintiffs failed to adduce evidence of any false representation made to them by Sewell, Tarabadkar, and/or McDonald, these defendants were entitled to summary judgment on the claims of fraud. Nothing in Hayes v. Hallmark Apartments or Seminole Peanut Co. v. Goodson, relied upon by the plaintiffs, provides for an outcome in their favor.

Case No. A12A1952

Goolsby, Faulk, and The Medical Center (hereinafter, collectively the “Hospital Defendants”) challenge the denial of their joint motion for summary judgment on Counts 4 and 5, which sought to hold them liable on theories of breach of fiduciary duty and fraud, respectively. In their joint motion seeking summary judgment, they argued that the plaintiffs had failed to adduce evidence to support elements of their claims of breach of fiduciary duty and fraud. Additionally, they argued that they were entitled to immunity, pursuant to OCGA § 31-7-132, as to all claims against them. In the order denying their joint motion for summary judgment, as stated above, the trial court summarily determined that “there are genuine issues of material facts as to whether the . . . Plaintiffs are entitled to relief for their fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty claims.”

4. In their sole enumerated error on appeal, the Hospital Defendants contend they were entitled to immunity. They assert that the plaintiffs’ claims arose out of their (the Hospital Defendants’) decision not to renew their (plaintiffs’) medical staff privileges. The Hospital Defendants assert that, in making those decisions, they were performing “peer review” activities, and therefore were immune from liability pursuant to OCGA § 31-7-132 (a). It provides:

No professional health care provider nor any individual who serves as a member or employee of a professional health care provider or review organization nor any individual who furnishes counsel or services to a professional health care provider or review organization shall be held, by reason of the performance of peer review activities, to have violated any criminal law or to be civilly liable under any law unless he was motivated by malice toward any person affected by such activity.

As the Hospital Defendants acknowledge, the Supreme Court of Georgia clarified in Hosp. Auth. of Valdosta & Lowndes County v. Meeks:

“ ‘Peer review’ means the procedure by which professional health care providers evaluate the quality and efficiency of services ordered or performed by other professional health care providers . . . .”[] A “review organization” “engages in or utilizes peer reviews and gathers and reviews information relating to the care and treatment of patients for” certain specified purposes. [] . . . [W]e hold that a careful reading of these definitions reveals that they address the evaluation of the quality and efficiency of actual medical care services and do not encompass the credentialing process to the extent that every decision to extend or maintain staff privileges is a peer review or medical review function.

The Hospital Defendants maintain that they made the requisite showings under Hosp. Auth. of Valdosta & Lowndes County as follows. The Hospital cited evidence that in May 2003, The Medical Center created a panel — with members that included Goolsby; the psychological consultant who had been engaged to evaluate the interpersonal dynamics amongst the CGAS physicians; a senior CGAS anesthesiologist (who is not a party to this litigation); and the director of the hospital’s surgery center — which interviewed and evaluated the CGAS physicians who applied for positions within the anticipated restructured anesthesiology department. According to the Hospital Defendants, “[t]he action taken by the Hospital Defendants underlying the claims is the panel’s decision. That decision was the result of peer review, and, therefore, the Hospital Defendants are immune from civil liability in connection with that peer review activity.”

The plaintiffs counter that the Hospital Defendants were not entitled to summary judgment based on immunity under OCGA § 31-7-132 because the panel was not evaluating the quality and efficiency of actual medical care services (that had been ordered or performed by them (the plaintiffs)). The plaintiffs cite the affidavit testimony of the CGAS anesthesiologist who was on the evaluation panel:

I was present for each interview. Each interviewee was asked approximately the same questions, and was given a full chance to answer and comment on the topics. Generally, the interview focused on the future of the Department of Anesthesiology at [The Medical Center’s hospital], the need for harmonious participation by all anesthesiologists among each other and with [The Medical Center’s] staff, and whether the interviewee could be a team player in that context.

The Hospital Defendants respond by citing other evidence, and by relying on orders entered by the trial court.

(a) Other evidence. The Hospital Defendants cite the deposition testimony of the psychologist who was on the panel; she described that the evaluations primarily addressed behavioral issues and in-fighting amongst the CGAS physicians. The Hospital Defendants additionally cite similar deposition testimony by Goolsby regarding the panel’s determination that the CGAS group of physicians was not functioning properly — recalling that they had been accusing each other of billing fraud, and summarizing that their “inability to work together, the constant infighting, bickering and one-upmanship” had become “intolerable.”

We agree with the plaintiffs, however. The evidence cited here does not establish that the panel, even if a “peer review” committee, was evaluating the quality and efficiency of “actual medical care services” as contemplated by Hosp. Auth. of Valdosta & Lowndes County.

(b) Orders entered by the trial court. The Hospital Defendants contend:

The trial court erred in denying summary judgment to [them] because the court found that [The Medical Center’s] actions underlying the claims were “peer review activities,” as defined by the peer review statute, but failed to apply the immunity provided for in the same statute. OCGA § 31-7-132.

The record reveals that the trial court appointed a special master to make recommendations upon discovery matters, including whether The Medical Center was required to produce certain documents to the plaintiffs, or the documents were protected by the peer review privilege as codified in OCGA § 31-7-133. Along with that appointment, the trial court ordered, “Documents claimed to be subject to the medical peer review privilege, will be provided to the Special Master, in camera, for his review for him to make recommendations to the Court regarding the validity of the asserted privilege.” Thereafter, the special master made recommendations to the trial court that certain documents were protected, and the trial court entered orders adopting the special master’s recommendations.

Thus referring to those orders in seeking summary judgment on the ground of immunity, the Hospital Defendants posited in their brief: “This Court has already ruled that the evaluation process was a peer review activity. [] The Court’s ruling was correct, and settles this issue.” Further, at the summary judgment hearing, counsel for the Hospital Defendants asserted to the court that there was no question “that the Goolsby process was a peer review process as this [cjourt, you know, has so held.” But the trial court interjected, “You know, that’s something I’m not sure about, but go ahead.” When counsel then referred the court to “orders that have been signed and adopted, you know, by the [trial court] accepting the recommendations of the Special Master,” the trial court responded, “I’m not sure about the scope of that order. . . .”

Given the circumstances of this case, including the summary order on appeal, we vacate the denial of summary judgment; we remand the case so that the trial court may clarify whether its orders adopting the special master’s discovery recommendations further determined that, for purposes of immunity under OCGA § 31-7-132 (a), the panel was a peer review committee that was evaluating the quality and efficiency of actual medical care services.

Decided March 30, 2015.

Holland & Knight, Alfred B. Adams III, Cynthia G. Burnside, Heather A. Calhoun, Leland H. Kynes, for Sewell et al.

McGriff & Associates, George W. McGriff, Eric E. Wyatt, Nicholas G. Dumich, for Cancel et al.

Conley Griggs Partin, Ranse M. Partin, King & Spalding, W. Ray Persons, for Faulk et al.

5. The Hospital Defendants have not argued to this court that the denial of summary judgment should be reversed based upon the other grounds they pursued in the trial court. Consequently, we do not reach the propriety of the trial court’s denial of summary judgment in that regard.

Judgment reversed in Case No. A12A1951.

Dillard, J., concurs. Ellington, P. J., concurs in judgment only.

Judgment vacated, and case remanded in Case No. A12A1952.

Dillard, J., concurs as to Division 5 and concurs in judgment only as to Division 4. Ellington, P. J., concurs in judgment only.

       321 Ga. App. 523 (740 SE2d 870) (2013).

       See id.

       See id.

       See id. at 536-537 (7), 538 (9).

       295 Ga. 235 (759 SE2d 485) (2014). (The Supreme Court of Georgia denied certiorari in Case No. A12A1950; thereafter, this court issued a remittitur in that case.)

       See id. at 235-236.

       Supra at 536-537 (7), 538 (9).

       (Emphasis supplied.)

        McManus v. Taylor, 326 Ga. App. 477, 484 (3) (756 SE2d 709) (2014).

        U. S. Anchor Mfg. v. Rule Indus., 264 Ga. 295, 297 (1) (443 SE2d 833) (1994) (citations, punctuation and emphasis omitted).

        Cook v. Robinson, 216 Ga. 328, 329 (4) (116 SE2d 742) (1960) (citations omitted).

        Ansley Marine Constr. v. Swanberg, 290 Ga. App. 388, 391 (1) (660 SE2d 6) (2008) (punctuation and footnote omitted).

       See generally Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585 (1) (397 SE2d 699) (1990) (“The general rule is that actions for breach of fiduciary duties are to be brought in derivative suits____Actions seeking to recover for usurped corporate opportunities belong to the corporation.”) (citation and punctuation omitted).

        Cancel v. Sewell, supra at 526 (emphasis supplied).

       Id. (emphasis supplied).

       Id.

       See generally Bacon v. Volvo Svc. Center, 266 Ga. App. 543, 546 (3) (597 SE2d 440) (2004) (“[A]n employee breaches no fiduciary duty to the employer simply by making plans to enter a competing business while he is still employed. Even before the termination of his agency, he is entitled to make arrangements to compete and upon termination of employment immediately compete.”) (citation and punctuation omitted).

       OCGA §§ 14-2-830 (a); 14-2-842 (a).

        Comolli v. Comolli, 241 Ga. 471, 474 (1) (246 SE2d 278) (1978) (considering language in Corporation Code requiring directors to act in “good faith” and with “ordinary diligence” in all transactions).

       See generally Tallant v. Executive Equities, 232 Ga. 807, 810 (209 SE2d 159) (1974) (noting that courts are reluctant to interfere in matters involving merely the judgment of the majority in exercising control over corporate affairs).

       See generally Southeast Consultants v. McCrary Engineering Corp., 246 Ga. 503, 508 (273 SE2d 112) (1980) (explaining that the imposition of liability for wrongful appropriation of a business opportunity requires, inter alia, a showing that “the appropriated opportunity was in fact a business opportunity rightfully belonging to the corporation”), cited in Brewer v. Insight Technology, 301 Ga. App. 694, 695 (1) (689 SE2d 330) (2009).

       254 Ga. 216 (326 SE2d 460) (1985).

       Id. at 216-217.

       Id. at 216.

       Id.

       Id.

       Id.

       Id.

       Id. at 217.

       Id. (emphasis supplied).

       Id.

       Id.

       Id.

       Id. at 219 (4).

       Id.

       Id. at 220 (6).

       Id.

       Accord Claire v. Rue de Paris, 239 Ga. 191, 194 (236 SE2d 272) (1977) (“The rule is firmly established that where stockholders in a corporation participate in the performance of an act, or acquiesce in and ratify the same, they are estopped to complain thereof.”) (citation and punctuation omitted). Cf. Quinn, supra.

        Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989) (citation omitted).

       See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (reiterating that where “there is no evidence sufficient to create a genuine issue as to any essential element of [a] plaintiff’s claim, that claim tumbles like a house of cards”).

       232 Ga. 307 (207 SE2d 197) (1974).

       176 Ga. App. 42 (335 SE2d 157) (1985).

       (Emphasis supplied.)

       285 Ga. 521 (678 SE2d 71) (2009).

       OCGA § 31-7-131 (1).

       OCGA § 31-7-131 (3) (B).

        Hosp. Auth. of Valdosta & Lowndes County, supra at 523 (citations and punctuation omitted; emphasis supplied).

       (Emphasis supplied by the plaintiffs in their brief.)

       Supra. Cf. DeKalb Med. Center v. Obekpa, 315 Ga. App. 739, 741 (1) (728 SE2d 265) (2012).

       [The footnote inserted here within these defendants’ joint brief stated in full: “January 25, 2010 Order (adopting Special Master’s Recommendation Regarding Plaintiffs’ Motion for Reconsideration that materials created, prepared, and/or used in the evaluation process for restructuring the anesthesiology department should not be produced because they are subject to peer review privilege and therefore protected from disclosure).”]

       (Emphasis in original.)

       Notably, in addition to the remarks concerning the scope of the orders adopting the special master’s recommendations, the trial court repeatedly indicated at the summary judgment hearing that there was evidence from which a jury could find malice.

       See McCall v. Henry Med. Center, 250 Ga. App. 679, 682 (1) (551 SE2d 739) (2001). Cf. DeKalb Med. Center, supra at 739-744 (1) (determining that the hospital was entitled to immunity under OCGA § 31-7-132 (a), where the hospital’s investigatory credentials committee reviewed physician’s patient charts, focusing on whether the physician was properly documenting the treatment of his patients, and where there was no evidence that the peer review process was motivated by malice). See generally Wilken Invs., LLC v. Plamondon, 310 Ga. App. 146, 149 (712 SE2d 576) (2011) (vacating judgment and remanding case for further consideration and clarification of order, where appellate court could not determine, inter alia, the grounds for the ruling).


author: Boggs, Judge. BARNES, Presiding Judge,

text:
    A14A1499.
    SEAGO v. ESTATE OF BERRY EARLE III.
    (771 SE2d 397)
   Boggs, Judge.

Alan Seago brought this action against the estate of Berry Earle III for injuries he sustained in a four-wheeler accident. The trial court granted summary judgment in favor of Earle’s estate, and Seago appeals. Because the evidence, construed in Seago’s favor, shows that he had equal knowledge of the hazard that caused his injury but failed to exercise reasonable care for his own safety, we affirm.

An owner or occupier of land must exercise ordinary care to keep his premises safe for invitees. OCGA § 51-3-1; American Multi-Cinema v. Brown, 285 Ga. 442, 447 (3) (679 SE2d 25) (2009). To show negligence in a premises liability case,

a plaintiff must show that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner’s control. However, the plaintiff’s evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably, and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.

(Citation and punctuation omitted.) LeCroy v. Bragg, 319 Ga. App. 884, 885 (1) (739 SE2d 1) (2013). See Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists 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.

(Citation and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010); see OCGA § 9-11-56 (c).

So viewed, the record shows that Seago and Earle’s adjoining neighbor were hired to install a fence along the road frontage of Earle’s property. The adjoining properties’ driveways run approximately parallel on either side of a wooded area. The tools for the work were stored in a shop at the rear of the neighbor’s property, and Seago used the neighbor’s driveway to go back and forth to obtain tools as needed and to put them away at the end of his work.

Seago worked for approximately two weeks installing the fence. On the afternoon of July 30, 2010, he was riding a four-wheeler through the wooded area between the two driveways searching for some missing tools. He collided with a chain installed between two trees on Earle’s property and was seriously injured.

In his deposition, Seago acknowledged that on his first day on the job he saw the chain “up at one time” blocking access to a drive or lane on Earle’s property. He acknowledged that he could see if the chain was up or down from that driveway as he drove back and forth in the course of his work. In his deposition, Seago repeatedly testified that on the day of his injury he did not look for the chain but “just assumed it was down,” because he had observed that the chain had been down since he began work, including the morning of his injury. Asked if it was correct that “he has seen the chain up before, and he has seen it down,” he agreed, “That’s right.”

This awareness of the existence of the hazard bars Seago’s recovery. While he testified that he had not seen the chain installed across the road for approximately two weeks, he was aware of its existence and could see it well enough from a distance to observe whether it was up or down during the course of the two-week period. In Spires v. Hall, 230 Ga. App. 357, 358-359 (1) (496 SE2d 501) (1998), we held that the injured rider of four-wheeler had knowledge of a gate, having passed through it “a few years earlier.” Therefore, “we cannot escape the fact that [Seago] unquestionably knew about the obstruction and that this knowledge foreclosed his recovery as a matter of law. [Cit.]” Id.

Seago testified that the chain was in “a shaded area” and that it was about 5:30 on a July afternoon when he collided with it. He acknowledged that the area was not part of his ordinary work area: “We didn’t use that area. That just wasn’t our area to use.” He did not have permission from either landowner to go onto that part of the property. Since he testified that he was “weaving in and out of the wooded area in between the spot it happened” looking for lost tools in an unfamiliar, shady location, he should have been proceeding slowly while scanning the ground.

Instead, he was driving the four-wheeler at a speed of between 35 and 40 miles per hour, and still accelerating, when he came out of the wooded area into the lane. He entered the lane at a 45 degree angle through a narrow opening in a “thicket” that “looked like [he] could get the four-wheeler down through” to get onto the lane and immediately collided with the chain. He acknowledged that while he was not sure if he was wearing his contact lenses at the time, “with or without the contacts in, if I had had them in or if I had had them out, I’d still — the chain just came up from nowhere, I came out of the wooded area so fast.” (Emphasis supplied.) He added, “if I was just heading straight to it, I’m sure I would have seen it, but me coming out of the area where I was coming out of, there was no time to see it.” (Emphasis supplied.) Whether the chain was marked is therefore irrelevant, because Seago acknowledged that he could see it from the neighbor’s driveway, but he could not have seen it at the speed and the angle he entered the lane. While Seago did not see the chain at the time of the collision, that was the result of his own conduct.

In sum, Seago was driving at high speed through an unfamiliar area, while distracted by looking for tools, and took a shortcut through a narrow opening which he admits was obscured by bushes to enter the lane at a sharp angle. He therefore had departed from any usual route of travel and had a heightened duty of care for his own safety.

The reasonable selection of a route of travel is a part of the invitee’s duty to exercise ordinary care for [his] own safety. While an invitee need not necessarily choose the safest course across the owner/occupier’s property, where an invitee voluntarily departs from the route designated and maintained by the owner/occupier for the invitee’s safety and convenience, the degree of caution required by the invitee’s duty to exercise ordinary care for [his] own safety is heightened by any increased risk resulting from that choice.

(Citation omitted.) Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 813 (440 SE2d 545) (1994).

Seago’s knowledge of the hazard was equal or superior to that of Earle, and he failed to exercise ordinary care for his personal safety. Accordingly, the trial court did not err in granting summary judgment.

Judgment affirmed.

Ellington, R J., Dillard and Branch, JJ., concur. Doyle, P. J., concurs in judgment only. Barnes, P. J., and Miller, J., dissent.

BARNES, Presiding Judge,

dissenting.

Because the trial court erred in granting summary judgment in favor of the appellee, I respectfully dissent. As Judge Blackburn foresaw almost twenty years ago, the “decisions of this Court have so twisted, limited, and misapplied certain holdings of the Supreme Court of Georgia as to create a gauntlet of premises liability analysis through which plaintiffs almost certainly cannot pass.” Blake v. Kroger Co., 224 Ga. App. 140, 153 (480 SE2d 199) (1996) (Blackburn, J., dissenting).

The very next year, our Supreme Court granted a writ of certiorari “to examine the appellate decisions which have as their crux a determination as a matter of law that an invitee failed to exercise ordinary care for personal safety,” and found the rulings, as a group, suspect for several reasons.

First, by routinely adjudicating as a matter of law questions of the plaintiff’s and defendant’s negligence, proximate cause, and the exercise of ordinary care, these decisions have made commonplace what is, in reality, an unusual circumstance in tort law, since as a general proposition issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication but should be resolved by trial in the ordinary manner. The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.

(Citations omitted.) Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997).

Twelve years later, in a case involving a “Wet Floor” sign that caused a movie theater patron to trip, the Supreme Court reaffirmed the principle that “[a]n invitee like [Seago] is not bound to avoid hazards not usually present on the premises and which the invitee, exercising ordinary care, did not observe.” (Citation and punctuation omitted.) American Multi-Cinema, Inc. v. Brown, 285 Ga. 442, 447 (3) (679 SE2d 25) (2009). The Court concluded, as I do in this case, that

[t]he decision whether to recognize [Seago’s] theory of recovery as valid under Georgia premises liability law is precisely the type of legal policy judgment we instructed in Robinson must be left to a jury to decide in light of all the attendant circumstances. It is one of the “routine” issues of premises liability — “the negligence of the defendant” — that is “generally not susceptible of summary adjudication” unless the “plain, palpable, and undisputed” evidence requires otherwise.

Id.

The principle is quite simple, and it remains the law in this State that the proprietor is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. Atlanta Gas Light Co. v. Gresham, 260 Ga. 391 (394 SE2d 345) (1990). Further, as this court stated more than 40 years ago, “[i]t is well-settled law that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury.” Savannah Ice Delivery Co. v. Ayers, 127 Ga. App. 560, 561 (1) (194 SE2d 330) (1972).

To conclude that summary judgment was proper because Seago admitted that he had on one occasion seen a chain placed between two trees, despite his claim that on all other occasions, including the day of the injury, the chain was not present, and the fact that only the appellee had control over when and if the chain was in place, usurps the clearly defined role of the jury. While the majority notes that Seago repeatedly testified that he “assumed” the chain was down, that testimony could easily mean that Seago assumed it was down because he had not seen it earlier that day and therefore did not look for it while he was driving through the woods looking for tools.

The jury should determine whether, based on these facts, Seago acted in a reasonable manner amounting to ordinary care to discover and avoid those things that might cause him injury. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). As further explained by Lau’s, “these issues may be decided by the court [only] in plain and palpable cases where reasonable minds cannot differ as to the conclusion to be reached.” (Citations and punctuation omitted; emphasis supplied.) Id. at 493. This is not such a case.

The Summary Judgment Act does not authorize the trial court to sit as both judge and jury, weighing the evidence and deciding issues that are traditionally for the jury. The sole function of the court on a motion for summary judgment is, rather, to determine whether there exists a genuine issue of material fact. In the instant case it is clear that such issues exist.

(Citations and punctuation omitted.) Collins v. Newman Machine Co., 190 Ga. App. 879, 884 (380 SE2d 314) (1989). See Butler v. Lewman & Co., 115 Ga. 752, 758 (42 SE 98) (1902) (worker fell into an open elevator shaft on construction site and Supreme Court held that whether the worker “was, in point of fact, attempting to go upon a necessary errand and was exercising ordinary care, and whether the contractors were, in any or all of the particulars alleged, guilty of negligence which brought about the injuries complained of, were questions for the determination of a jury”). Here, the question of whether or not Seago exercised ordinary care on his own behalf, and whether and to what extent he was contributorily negligent, was for the jury to determine.

Decided March 30, 2015

Apolinsky & Associates, Stephen D. Apolinsky, Tona L. Shrum, for appellant.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, James B. Thagard, for appellee.

Because I believe that the trial court erred in granting appellee’s motion for summary judgment, I must respectfully dissent.

I am authorized to state that Judge Miller joins in this dissent.

       Earle died in an unrelated motorcycle accident before this action was filed, and he was not deposed. Whether the chain was replaced by him or with his knowledge before the injury is therefore unknown.

       While this testimony appears to raise an issue as to whether Seago lost his status as an invitee and became a mere licensee by going beyond that part of the premises to which he was invited, Armstrong v. Sundance Entertainment, 179 Ga. App. 635, 635-636 (347 SE2d 292) (1986), Seago testified that he was instructed to “lock the gate and put the tools up” after work, and he believed that other individuals who were helping to build the fence may have left some missing tools in the area.

       Seago also acknowledged that he “turned [his] head looking for stuff at the same time [he] was traveling.”

       While the majority posits that evidence presents an issue as to whether Seago might have become a licensee because he answered “No” in response to the defendant’s question whether he was given permission to go onto this area of Earle’s property, Seago also testified that he was not told to avoid that area, that it was considered part of the crew’s work area, and that it was used by workers to traverse from one property to the other.


author: Boggs, Judge.

text:
    A14A1527.
    HARDISON v. ENTERPRISE HOLDINGS, INC.
    (771 SE2d 402)
   Boggs, Judge.

Marshall Hardison appeals from the trial court’s grant of summary judgment to his former employer, Enterprise Holdings, Inc. d/b/a Enterprise Rent-A-Car (“Enterprise”) on his “Complaint for Personal Injuries.” Because issues of fact remain with regard to Hardison’s claims of wrongful retention, we reverse.

On appeal, “[w]e review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.” (Citation omitted.) Latson v. Boaz, 278 Ga. 113 (598 SE2d 485) (2004). To prevail, “the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Id.

Construing the evidence in the light most favorable to Hardison, the record reveals that he was employed by Enterprise as a driver to transport rental vehicles from location to location. On April 3, 2012, Hardison, Tarsha Tarver and two other Enterprise employee-drivers were returning to an Enterprise office as part of their duties after delivering rental cars to LaGrange, Georgia. Tarver took the keys for the vehicle they were to return in (the “chase car”), and the four of them walked out of the office and out the back door to get to the vehicle. Tarver “took the keys and shoved them into the ignition and got in the backseat of the car,” and closed the door. One of the other two employees got into the back seat with Tarver. Hardison was disappointed that Tarver “took the keys to the vehicle and didn’t want to drive it.” While standing in front of the vehicle, he told her, “if you take the keys, drive the vehicle.” Tarver responded, “F— you motherf— to which Hardison responded, “I don’t need this today. So [he] walked away back to the front of the vehicle.” He then told Tarver, “I’ll drive.”

As Hardison attempted to get into the driver’s seat, Tarver “jumped out” and “charged” him. Hardison told Tarver, “don’t rush up in my face,” and the “next thing I realized my finger was in her mouth.” Hardison explained that “she was biting and would not let go,” and that he did not “remember saying anything. My finger is being bitten, chomped down on. I’m trying to get her off my finger.” He stated further that he hit her on the head to get her to let go and pushed her against a car. Following this incident, Enterprise terminated both Hardison and Tarver.

Hardison filed a complaint against Tarver and Enterprise asserting that Tarver committed assault and battery and intentional infliction of emotional distress, and that Enterprise ratified those acts. He also asserted claims for wrongful retention, failure to maintain a workplace free from unwanted misconduct, physical violence and harassment, and negligent hiring against Enterprise. Hardison sought exemplary damages, expenses of litigation, and attorney fees. Following some discovery, Enterprise moved for summary judgment on Hardison’s remaining claims. The trial court, without a hearing, ruled: “The facts in this case are virtually indistinguishable from the facts in Heard v. Mitchell’s Formal Wear, 249 Ga. App. 492 [(549 SE2d 149)] (2001). The motion for Summary Judgment of Enterprise Holdings, Inc. is granted.”

In Division 1 of Heard, this court held that “[u]nder OCGA § 34-9-11 (a), the Workers’ Compensation Act (Act) is an employee’s only remedy for the intentional torts of a co-worker, unless the tortious act was committed for personal reasons unrelated to the conduct of the employer’s business.” (Citations and punctuation omitted.) Id. at 493 (1). But here, Hardison has abandoned these claims in favor of exclusively pursuing his claims sounding in wrongful retention.

In Division 2 oí Heard, this court held that the plaintiff-appellant failed to “come forward with any evidence sufficient to create an issue of fact on her claim of negligent supervision or training.” Id. at 494 (2). Hardison argues that Heard does not control here because it is factually distinguishable, and that the trial court therefore erred in granting summary judgment on his claims for wrongful retention and failure to maintain a workplace free of unwanted misconduct, physical violence and harassment. We agree.

“An employer’s liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s violent and criminal propensities.” (Citations and punctuation omitted.) Kemp v. Rouse-Atlanta, 207 Ga. App. 876, 878 (1) (429 SE2d 264) (1993). And, “[ijnorderto defeat summary judgment on this issue, a plaintiff must produce some evidence of incidents similar to the behavior that was the cause of the injury at issue.” (Citations omitted.) Remediation Resources v. Balding, 281 Ga. App. 31, 34 (2) (635 SE2d 332) (2006).

The question presented here, therefore, is whether Hardison presented some evidence that Enterprise knew or should have known of Tarver’s propensity to commit the violent act of which he complains. Contrary to Enterprise’s argument here, it is not necessary to show that it knew of Tarver’s propensity to bite a co-worker. We have held that “it is not necessary that the employer should have contemplated or even be able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff.” (Citations and punctuation omitted.) Remediation Resources at 34 (2).

In contrast to the employee in Heard, who could present no evidence of previous incidents or a propensity for violence, id. at 494 (2), Hardison testified that prior to this incident, he had complained about Tarver’s aggressive behavior to Enterprise management — a branch manager, an area manager, and an assistant mamager. He asserted that he and several other employees told a branch manager in December 2011 that while he and another employee were talking about “grandchildren purchasing toys, and the respect had been lost and various topics” while riding in a vehicle, Tarver “came out [of] the backseat screaming and yelling. She actually lurched over her seat of the... van yelling and screaming” and cursing at the other employee. When the employees reached their destination and got out of the van, Tarver approached the employee she had argued with and tried to hit him. Another person stepped in and grabbed Tarver to separate the two. Hardison stated that he reported to the branch manager that Tarver was trying “to attack [the employee].” The branch manager deposed that he overheard Tarver and the employee arguing as they entered the office, but denied being told of “any type of physical movement” by Tarver toward the other employee.

Decided March 30, 2015.

The Roper Law Firm, John W. Roper, for appellant.

The area manager deposed that he recalled being told by the branch manager of “a scuffle” between Tarver and the employee in the December 2011 incident, and that thereafter Tarver was taken off work, but gave no testimony that he was aware of any other confrontations involving Tarver, verbal or physical.

Hardison also testified that he reported to an assistant manager details of an incident in February 2012 involving Tarver in which she yelled at another employee who said “what’s that smell” as he got into a van with her and other employees. The employee explained to Tarver that his comment was not directed at her, but Tarver and the employee “exchange [d] .. . words” during the half-hour drive. When the employees arrived at their destination, Tarver “continued to yell and scream” at the employee who made the comment and “aggressively [l]urch[ed] towards him.” Hardison testified he told the assistant manager that after they arrived in the parking lot, “Tarver was approaching [the employee] in an angry manner.”

While the area manager and branch manager maintained that they were not told of Tarver’s attempts to engage in physical confrontations with other employees, Hardison presented some testimony creating an issue of fact with regard to Enterprise’s knowledge of these acts. Hardison testified that he informed a branch manager and an assistant manager of Tarver’s physical aggression toward one employee and her attempt to attack another employee. In the face of some evidence that Enterprise was aware of Tarver’s propensity to engage in verbal confrontations and of her attempts to engage in physical confrontations, the grant of summary judgment was inappropriate and the issue of Enterprise’s knowledge is for a jury’s determination. See, e.g., Tecumseh Products Co. v. Rigdon, 250 Ga. App. 739, 742-743 (1) (552 SE2d 910) (2001) (evidence demonstrated employer had actual and constructive knowledge of employee’s propensity to lose temper and become violent); compare Ga. Messenger Svc. v. Bradley, 302 Ga. App. 247, 250 (2) (a) (690 SE2d 888) (2010) (no evidence that employer knew of employee’s dangerous propensities). We therefore reverse.

Judgment reversed.

Barnes, P. J., and Branch, J., concur.

Fisher & Phillips, Marion F Walker, Julie D. Loring, Hatcher, Stubbs, Land, Hollis & Rothschild, Melanie V Slaton, David L. Mize, for appellee.

       Hardison also asserted a claim of tortious interference with contractual relations against Tarver.

       This claim was later dismissed.