author: Doyle, Judge.

text:
    A10A1537.
    A10A1538, A10A1540.
    A10A1539.
    R & R INSULATION SERVICES, INC. v. ROYAL INDEMNITY COMPANY et al. R & R INSULATION SERVICES, INC. et al. v. ROYAL INDEMNITY COMPANY et al.; and vice versa. CRANE COMPANY v. ROYAL INDEMNITY COMPANY et al.
    (705 SE2d 223)
   Doyle, Judge.

On May 19, 2003, a fire occurred in an oven at a chicken processing plant located in Oakwood, Georgia, and owned by Wayne Farms, LLC. After the fire, Wayne Farms and its various subrogors, including Royal Indemnity Company (collectively “Wayne Farms”), filed suit against R & R Insulation Services, Inc., a company owned by Richard Robinson (“R & R”), and Crane Company (“Crane”), doing business as Crane Composites, Sequentia Incorporate, and Lasco Composites, LI) seeking $260,000,000 in damages resulting from the fire. In its amended complaint, Wayne Farms alleged that Crane manufactured Class C-rated fiberglass reinforced plastic panels (“Class C FRP”), which were interior finish materials used in the Oakwood facility. Wayne Farms alleged that Crane failed to appropriately test the FRP in foreseeable end-use configurations — specifically, installation using nylon rivets — which resulted in the misrepresentation of the actual combustibility and flame spread properties and mislabeling of the product as a Class C interior finish. Wayne Farms contended that it relied on this incorrect labeling when installing the product in its Oakwood facility, resulting in the extensive spread of the 2003 fire.

Wayne Farms also alleged that R & R, which was contracted to install FRP in the Oakwood facility, failed to sufficiently warn Wayne Farms about the combustibility of the Class C product or adequately select and install appropriate material for the area in a proper configuration. Wayne Farms alleged that R & R should have selected and installed Class A FRP or installed Class C FRP using metal fasteners rather than nylon rivets, which negligence resulted in the extensive spread of the fire at the Oakwood facility. Wayne Farms also contended that both Crane and R & R violated the Life Safety Code by manufacturing and installing Class C FRP without appropriate testing to ensure that the product met that classification in foreseeable end-use configurations.

In Case No. A10A1537, this Court granted R & R’s application for interlocutory appeal of the trial court’s denial of R & R’s motion for summary judgment. In Case No. A10A1538, this Court granted R & R’s and Crane’s applications for interlocutory appeal of the trial court’s order denying the parties’ joint motion for sanctions for spoliation of evidence. In Case No. A10A1539, this Court granted Crane’s application for interlocutory appeal of the trial court’s denial of its motion for summary judgment. Finally, in Case No. A10A1540, Wayne Farms cross-appeals from the trial court’s denial of its motion for partial summary judgment on R & R’s and Crane’s affirmative defenses of comparative and contributory negligence and intervening or superceding cause. For the following reasons, we affirm in part and reverse in part the trial court’s orders.

Case Nos. A10A1537 & A10A1539

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [a] plaintiffs case. If 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. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden oh the [party moving for summary judgment] may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Viewed in this light, the record reveals the following. Wayne Farms’s Oakwood Facility was a “further process facility,” at which poultry was cooked, marinated, or otherwise processed and then frozen for consumer packaging. In 2002, the Oakwood facility had three indoor cooking lines known as Lines One, Three, and Five; the facility was experiencing issues with discoloration and paint flaking off the wall and ceiling finishes of Line Three, which potentially could have led to a plant shutdown for food contamination, so Wayne Farms began replacing the old interior finish materials on Line Three. Specifically at issue here is the replacement of the interior finish materials in the Line Three oven room. Wayne Farms’s employees replaced the wall coverings in that room, utilizing Crane’s Sequentia Class C FRP affixed with nylon rivets, but R & R was contracted to replace the ceiling of the room. Richard Robinson, the owner of R & R, visited the Line Three oven room when Wayne Farms sought bids for the ceiling replacement, and he deposed that the room was very hot, leading him to initially quote Wayne Farms a price for installing stainless steel on the ceiling in order to prevent discoloration of the product over time. This bid was rejected, and Robinson was instructed by Wayne Farms employees to rebid using FRP as the finish material rather than stainless steel. Crane manufactured the particular Class C FRP eventually installed by R & R and marketed it under the name-brand Lasco.

Randy Horwitz and Robert Carrodus oversaw the replacement of the wall and ceiling finishes in 2002. Horwitz was the operations manager and the senior employee at Wayne Farms’s Oakwood facility, and Robert Carrodus was the maintenance manager at Oakwood; however, both men left their employment shortly before the fire occurred in May 2003. Horwitz deposed that he and Carrodus discussed using stainless steel as the replacement material for the walls and ceilings; however, because of time constraints and budget year concerns, plant management determined that stainless steel was not an option for the Line Three ceiling. Horwitz also deposed that during the process, he reviewed the technical data for FRR which in addition to providing technical points for flame development and smoke point, contained a boxed warning that provided a statement similar to the following:

The numerical flame spread and smoke development ratings are not intended to reflect hazards presented by these products or any other material under actual fire conditions. These ratings are determined by small-scale tests conducted by Underwriters Laboratories and other independent testing facilities using the American Society for Testing and Materials E-84 test standard (commonly referred to as the “Tunnel Test”). THESE RATINGS ARE PROVIDED FOR MATERIAL COMPARISON PURPOSES ONLY.
Like other organic building materials (e.g., wood), panels made of fiberglass reinforced plastic resins will burn. When ignited, [FRP] may produce dense smoke very rapidly. All smoke is toxic. Fire safety requires proper design of facilities and fire suppression systems, as well as precautions during construction and occupancy. Local codes, insurance requirements and any special needs of the product user will determine the correct fire-rated interior finish and fire suppression system necessary for a specific installation.

Horwitz deposed that he did not discuss with Robinson the manner in which Robinson would affix the FRP to the ceiling and did not discuss with Robinson the use of nylon rivets versus other installation methods, but he directed Robinson to install FRP and to do so in a timely manner in order to avoid breaks in production. Robinson’s invoice did not contain a breakdown of price for labor, the FRP or any fasteners, but his prior work with Crane always involved the use of nylon rivets as the fastening product. Horwitz deposed that Wayne Farms did not install any metal capable of rusting, but this would not have excluded the use of stainless steel fasteners.

Horwitz deposed that at the time he worked at the plant, another cooked-poultry line was being upgraded by replacing FRP around a fryer with stainless steel because the FRP would warp from the heat and discolor to a light brown or yellow. Horwitz explained that he and Carrodus made the decision to replace FRP around the fryer with stainless steel because of issues with the FRP near heat. Horwitz deposed that approximately 60 percent to 80 percent of the plant walls were covered in FRP at the time of the fire.

Hector Rodriguez, who worked at Wayne Farms performing maintenance, deposed that he was directed by Bob Boren, who preceded Carrodus, to purchase and install FRP from various home improvement retailers, independent of R & R. Rodriguez deposed that Wayne Farms was installing FRP in the facility before R & R was contracted to install the material, and Rodriguez always used nylon rivets when installing FRP which he decided to use because the fasteners were located beside the FRP when he purchased the material at the home improvement store.

Carrodus normally directed Rodriguez to install FRP on the walls of the facility, and Carrodus deposed that Wayne Farms decided to install the product because “it was impervious to certain chemicals and it looked nice for our tours for our customers and that our facility looked good, that’s the material we used to put up.” Carrodus deposed that Rodriguez installed FRP in the plant at the direction of Wayne Farms’s management, and Carrodus stated that, to his knowledge, no one at Wayne Farms ever sought advice from R & R regarding installation of FRP Carrodus was aware that Rodriguez used nylon fasteners to adhere FRP to the walls.

Discussing R & R, Carrodus deposed that the company was used for other installation jobs, and Wayne Farms provided interior finishing materials, including FRP for installation by R & R for some jobs, while R & R obtained the materials from other vendors for some jobs. Carrodus thought that R & R was slow but did “superior work.” Carrodus deposed that R & R installed the FRP as instructed and did so in a workmanlike manner. Carrodus deposed that, based on the approximate price difference between Class A and Class C FRf] he did not believe that a bid utilizing Class A FRP for the ceiling of Line Three would have been approved by upper management at Wayne Farms. Nevertheless, at the time of the installation, Carrodus was not aware that more than one kind of FRP existed.

When discussing the other materials lining the walls and ceilings in the plant, Robinson deposed that he had previously, at Wayne Farms’s direction, installed a drop ceiling in the oven room of Line One with extruded polystyrene foam panels (“EPS”), which Wayne Farms provided to Robinson. The distributer’s invoice for the EPS alerted Wayne Farms to the fact that EPS was not fire-rated and was flammable. Carrodus deposed that he assumed the EPS was flammable because of what “the material. . . was made of, [including styrofoam, simply] looked like it could be flammable.”

The Fire

The cause of the fire is disputed by the parties. While R & R and Crane contend that evidence discovered prior to summary judgment shows that the fire may have begun as a hydraulic fluid fire in the ceiling over a char-marker machine, Wayne Farms theorizes that the fire began in the oven room of Line Three, which is adjacent to the char-marker room. Taking the evidence in the light most favorable to Wayne Farms, we assume for the purposes of these appeals that the fire began as it theorizes. Thus, we assume that the fire began in the Line Three oven room when the maxon burner in one of the two jet stream ovens failed. Normally, the gas flame in the oven was propelled down by the maxon device, but the failure resulted in the escape of the gas flame through the top of the oven toward the FRP ceiling.

Wayne Farms theorized that the flame heated the FRP ceiling, causing the nylon rivets used to mount the FRP to fail and the FRP to sag toward the flame. The fire then erupted and spread because the FRP was ignited on both sides of the material.

After a hearing on the parties’ motions, the trial court entered a brief order denying without discussion Crane’s and R & R’s motions for summary judgment, Wayne Farms’s motion for partial summary judgment, and the Appellants’ joint motion for sanctions for spoliation of evidence.

Negligence Per Se

1. Wayne Farms argues that the Life Safety Code, which has been incorporated into the Georgia Minimum Building Standards Code, requires that Crane and R & R must test any interior finishing materials in as-installed configurations before selling or installing these products in Georgia. To support its contention, Wayne Farms relies on Life Safety Code § 6-5.1.4, which states:

Classification of interior finish materials shall be in accordance with tests made under conditions simulating actual installations, provided that the authority having jurisdiction shall be permitted to establish the classification of any material on which a rating by standard test is not available.

The Life Safety Code further states that all interior finish materials shall be classified based on flame spread and smoke development with Class A being the highest rated and Class C being the lowest rated. The numerical ratings for Class C consist of flame spread of 76-200 and smoke development of 0-450. Wayne Farms has not contested that Class C interior finishes are allowed in buildings such as the Oakwood plant.

Generally, negligence per se arises when a statute or ordinance is violated. The violation of certain mandatory regulations may also amount to negligence per se if the regulations impose a legal duty. OCGA § 51-1-6 provides: When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.

To recover under a theory of negligence per se,

the plaintiff must show that the victim fell within the class of persons the [Life Safety Code] was intended to protect and that the injury complained of was the type of harm the [Life Safety Code] was intended to prevent. A showing of negligence per se, however, does not establish liability per se. Breach of duty alone does not make a defendant liable in negligence.

Crane and R & R contend that the Life Safety Code does not require testing other than the ASTM E-84 Steiner Tunnel Test, which was performed on the product and which does not require testing in an end-use configuration. Crane contends that its products are rated by independent laboratories using the test, and the Lasco Class C product was rated as such based on the required test. Wayne Farms, on the other hand, contends that the language of the Life Safety Code § 6-5.1.4 requires interior finish building materials to be tested for flame spread and smoke development in their end-use configurations, which in this case would have been a horizontal application using nylon rivets. Wayne Farms contends that Crane’s failure to test the Lasco FRP in this manner constituted negligence per se under the Life Safety Code, and R & R is liable for installing a noncompliant interior finish product.

In this case, pretermitting whether the Life Safety Code section at issue requires Crane or R & R to execute any testing beyond the ASTM E-84 Steiner Tunnel Test, Wayne Farms has failed to show that any breach of this Code-created duty was the proximate cause of its injuries. Wayne Farms’s own experts deposed that Lasco FRP installed by R & R met the flame spread and smoke development specifications to be classified in the Class C category when applied in a horizontal configuration using nylon rivets — precisely the configuration used by R & R. Accordingly, regardless of whether Crane failed to complete the particular testing envisioned by Wayne Farms prior to distributing the product as Class C, there is uncontroverted evidence that the product meets the requirements to be distributed as Class C and to be installed as an interior finish under the Life Safety Code, and thus, Wayne Farms has failed to establish that a breach of any duty under the Life Safety Code by Crane resulted in the injury in this case. Accordingly, the trial court erred by denying Crane’s and R & R’s motions for summary judgment with regard to Wayne Farms’s negligence per se claims as to the installation of Lasco Class C FRP on the ceiling of the Line Three oven room.

2. Wayne Farms’s own employees installed the Sequentia Class C FRP to the walls of the oven room, and during oral argument for the motions for summary judgment on the issue of negligence per se for breach of the Life Safety Code, Wayne Farms’s attorney conceded that the Sequentia FRP was “not a part of this lawsuit.” Accordingly, we find that Wayne Farms has conceded that it does not have any pending claims against Crane or R & R regarding the installation of Sequentia Class C FRf} and the trial court should have granted summary judgment to Crane and R & R as to those claims.

Accordingly, based on the foregoing, the trial court erred by denying Crane’s and R & R’s motions for summary judgment as to the negligence per se claims for violations of the Life Safety Code.

Negligence

R & R and Crane contend that the trial court erred by denying their motions for summary judgment as to Wayne Farms’s negligence claims. We affirm in part and reverse in part as fully explained below.

To state a cause of action for negligence, a plaintiff must establish the following essential elements: “(1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury.”

At the outset, we note that Crane did not manufacture the nylon rivets used to install the FRP to the ceiling of the Line Three oven room, and the manufacturer of the nylon rivets used in this case is not a party to this lawsuit, nor was the product information or any of the warnings or instructions for the use of that product challenged by any of the parties in this case.

Negligent Failure to Warn

3. “The common-law duty imposed upon suppliers of chattels includes the duty to warn of foreseeable dangers arising from the reasonable use for which the product is intended and requires the exercise of reasonable care to inform third persons of the dangerous condition or of the facts which make the product likely to become dangerous.” Nevertheless,

there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known. The same rule applies where it appears that the person using the product should know of the danger, or should in using the product discover the danger.

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

A breach of a duty to warn, however, must also be the cause of the injury about which the plaintiff complains, and the plaintiff must present evidence supporting a reasonable inference that the warning provided by the defendant would prevent the injury.

An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough. . . ,

(a) Crane contends that the trial court erred by denying its motion for summary judgment as to Wayne Farms’s claims that it failed to adequately warn of the dangers of installing Lasco Class C FRP in ceiling applications with nylon rivets. We disagree and affirm the denial for the following reasons.

(i) Crane argues that it did not owe a duty to Wayne Farms to warn of any danger of adhering Lasco Class C FRP to the ceiling because Crane had no actual or constructive knowledge of the alleged defect. Nevertheless, it is foreseeable that the public will rely upon recommendations for installation made by a manufacturer, which in this instance, included recommendations for ceiling-mounted FRP using either nylon drive rivets or noncorroding fasteners. Therefore, whether Crane breached a duty to adequately warn consumers about fastening methods recommended in its literature and whether this failure was the proximate cause of Wayne Farms’s injury is an issue for the jury.

(ii) Equally unmeritorious is Crane’s contention that Wayne Farms’s prior use of FRP transformed Wayne Farms into a “sophisticated user” or absolved Crane, as a matter of law, of any duty to provide warnings about its recommended installation methods. While questions exist concerning Wayne Farms’s degree of knowledge of installation methods, which may have been more or less appropriate for its facility, we again do not find that the evidence presented by Crane (or lack of evidence presented by Wayne Farms) necessarily compels a finding that Crane owed no duty to investigate or warn in this instance.

We agree with Crane that it cannot possibly foresee the multitudinous applications of its product within a building and that Wayne Farms was in the best position to know of the specific facts related to the installation that may have required a particular method of affixing the product. Nevertheless, as we previously noted, Crane recommended certain installation methods, and it is for the jury to determine whether it provided the appropriate level of warning for those methods.

(iii) Crane contends the hazard here — that FRP would ignite and burn in a fire — is an open and obvious hazard for which it owed no duty to warn. We recognize that being burned from a fire is often cited as an example of an injury from an open and obvious danger; the danger is not so clear in this case. For instance, Carrodus deposed that while the EPS used in the facility appeared to be flammable, he offered no such testimony regarding FRP It is undisputed that Crane manufactures FRP with various levels of fire retardant material, which are not necessarily apparent simply from looking at a piece of the material. Thus, while generally speaking one might understand that a plastic material will melt or burn when exposed to an open flame, it does not necessarily follow that one would understand this particular product would burn in the manner and speed alleged by Wayne Farms. Accordingly, we find this argument without merit.

(iv) Crane also contends that Wayne Farms has failed to present evidence that any failure to warn about the use of nylon rivets was the proximate cause of Wayne Farms’s injury.

First, Crane contends that the cause of the fire and reasons for its spread remain unknown, and thus, Wayne Farms’s contention that the nylon rivets and FRP caused the spread of the fire is too speculative to support the denial of summary judgment in Crane’s favor. We disagree. Wayne Farms has presented evidence in the form of expert testimony, photographs, and testing upon which a jury could reasonably conclude that the FRP spread the fire. Normally, issues of proximate cause are not susceptible to summary adjudication except in the most plain and palpable cases, and we determine that this case is not among those so suited. While the jury may ultimately determine that any additional warning would not have prevented the harm here, that question is not for this Court to determine at this stage of the proceedings.

Next, Crane maintains that Wayne Farms was not aware of and did not rely upon any recommendation made by Crane regarding fastening materials, which prevents a finding of proximate cause in this instance. This argument fails. Crane made recommendations for the installation of its product, and it is clear from the deposition testimony of Robinson and Rodriguez that the methods for affixing the product at Wayne Farms were common in the industry and consistent with Crane’s recommendation, even if Wayne Farms did not rely directly upon Crane’s literature for its installation methods. Thus, there exists at least a question of fact as to whether an adequate warning by Crane would have prevented the spread of fire here.

Accordingly, we affirm the trial court’s denial of Crane’s motion for summary judgment as to its claims that Crane failed to provide adequate warning about installing to the Line Three ceilings Lasco Class C FRP with nylon rivets.

(b) R & R contends that the trial court erred by denying its motion for summary judgment with regard to its alleged failure to warn about the dangers of installing Lasco Class C FRP to a ceiling with nylon rivets. We agree and reverse.

First, to the extent that Wayne Farms contends that R & R should be liable for failing to warn of any alleged hazards associated with the installation of Class C FRP using nylon rivets, we hold that there was no such duty because Wayne Farms has failed to establish through affirmative proof that this information was provided by Crane to users of FRP or that R & R actually or constructively knew at the time of installation that this particular configuration may affect the FRP’s fireworthiness. Moreover, Wayne Farms has presented no affirmative evidence regarding warnings or product information provided to R & R by the manufacturer of the nylon rivets used in the installation or that R & R knew or should have known through its own experience with installation with nylon rivets that the mechanism was not appropriate for the ceiling of Line Three. As we stated earlier, a plaintiff must respond to a motion for summary judgment by presenting affirmative proof and may not merely rest upon its pleadings. Accordingly, the trial court erred by denying R & R’s motion for summary judgment as to any allegation of R & R’s negligence for failing to warn of the complaint.

(c) R & R also argues that the trial court erred by denying its motion for summary judgment as to its alleged failure to suggest installation of Class A FRP or warn against installing Class C FRP We agree and reverse.

R & R argues that any duty to warn was extinguished by Wayne Farms’s knowledge of the manufacturer’s warnings. R & R contends that under Georgia law, it was not under a duty to provide duplicative warnings regarding Class C FRP’s flame spread properties because the manufacturer’s warnings were previously provided to and known to Wayne Farms. Horwitz deposed that he had reviewed Crane’s product specifications prior to having the ceiling replaced with FRP and was satisfied with the flame spread and smoke production information. The fact that R & R was aware that the oven room was hot is of no moment. There are no allegations or facts to support a finding that the FRP or nylon rivets spontaneously combusted or sagged merely from the ambient temperature of the room. Rather, under Wayne Farms’s theory of the case, the FRP combusted as a result of a malfunction of its oven, and there is no evidence that R & R was aware of the function of the oven or that it was likely to malfunction and shoot flames into the air. Moreover, Wayne Farms installed the same class FRP on the walls of the same room, presumably with the awareness that the oven generated a great deal of heat and that a potential fire hazard existed within the room, and Wayne Farms also provided EPS, which has no flame rating, to R & R and directed R & R to install the EPS in a similar oven room. Finally, Wayne Farms has presented no case law holding that installers have a duty to suggest installation of the “best” product, and here, Wayne Farms was aware of the same manufacturer’s warnings about FRP as R & R. That R & R did not insist Wayne Farms use a different product is not sufficient to sustain a claim for negligence.

Negligent Manufacturing

4. To the extent that Wayne Farms alleged in its complaint that Crane was negligently manufacturing Lasco Class C FRf^ we reverse the trial court’s denial of summary judgment. “In order to establish a negligent manufacturing claim, the plaintiff must come forward with evidence that, among other things, there was a defect in the product when it left the manufacturer that was caused by the manufacturer’s negligence.” Wayne Farms has failed to present any evidence that the FRP was negligently manufactured; on the contrary, the material as tested by Wayne Farms’s own experts met Class C fire-rating and smoke-development standards. As stated above in Division 3, any allegations that the nylon rivets were somehow defective should have been brought against the manufacturer of that product, which was not produced or distributed by Crane.

Negligent Installation

5. To the extent that Wayne Farms has asserted claims of breach of warranty to perform in a workmanlike manner against R & R by installing Lasco Class C FRP with nylon rivets rather than Class A FRP or Class C FRP with metal fasteners, we hold that the trial court erred by denying R & R’s motion for summary judgment.

The law imposes upon building contractors and others performing skilled services the obligation to exercise a reasonable degree of care, skill, and ability, which is generally taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by others of the same profession.

As previously concluded, Wayne Farms’s own testing concluded that Lasco FRP installed by R & R met Class C ratings for flame spread and smoke production when tested in a ceiling installation utilizing nylon rivets. Thus, the product met the minimum building code specifications for interior finish products, and in any event, Wayne Farms has failed to point to affirmative evidence in the record that R & R breached its duty to perform in a skillful manner by so installing the product. Wayne Farms has therefore failed to produce affirmative evidence of breach of duty on the part of R & R in so installing the Lasco Class C FRP

Case No. A10A1540

6. Next, we address Wayne Farms’s cross-appeal from the trial court’s denial of its motion for partial summary judgment.

(a) On appeal, Wayne Farms first argues that the trial court erred by denying its motion because Crane’s asserted affirmative defenses of intervening or superceding cause and contributory or comparative negligence are related to the start of the fire and not the spread of the fire. Wayne Farms contends that damage from the start of the fire is not at issue in this case, and therefore, the Appellants should be precluded from asserting these defenses. We disagree and affirm the trial court.

Evidence of contributory negligence showing that the plaintiff “is to some degree responsible for the injury or damages claimed” is relevant and admissible for reduction and apportionment of damages in cases involving injury to persons or property. Closely allied to the doctrine of contributory negligence is the rule of avoidable consequences, which denies recovery for any damages which could have been avoided by reasonable conduct on the part of the plaintiff. And a plaintiff injured by the negligence of another must mitigate his damages as far as is practicable by the use of ordinary care and diligence.

The trial court correctly denied Wayne Farms’s motion for partial summary judgment because the jury could find that Wayne Farms’s alleged negligence of causing the fire could have been prevented and served to extinguish completely any liability on the part of Crane. Wayne Farms contends that its 50-state survey reflects that most courts in this country have held that the cause of a fire is irrelevant to the question of whether a defendant is liable for fire spread damages. Wayne Farms’s cases, however, are inapplicable to the case at hand. Wayne Farms has failed to cite a single case in which the cause of the fire was determined by a court to be unrelated to the issue of whether the manufacturer or installer of a product contained in the property allegedly increased the spread of the fire. The cited cases involve (1) delay in detection or rendering aid; (2) failure of a flame suppression system; or (3) spread of a fire from the property of one to the adjacent property of another. It is for the jury to determine liability and amount of damages in this instance, and the determination is not necessarily bound to Wayne Farms’s determination that $260,000,000 constituted the loss from the spread rather than start of the fire.

Based on Wayne Farms’s theory of negligence, determination of the issue of how and where the fire started necessarily will affect the determination of whether the FRP negligently spread the fire from the failure of the nylon rivets. Here, the evidence of Wayne Farms’s knowledge of the properties of FRP and its various fastening methods is a question of fact, and there are additional disputed issues as to whether Wayne Farms could have prevented altogether the fire with the utilization of safety mechanisms.

To the extent that Wayne Farms is asking for exclusion of various pieces of evidence based on the irrelevant nature of alleged safety violations in relation to Crane’s alternative theories of causation, such determinations of admissibility of evidence are pre-trial matters that should first be made by the trial court, and we will not address them here. Accordingly, Wayne Farms’s enumeration is without merit.

(b) Wayne Farms also contends that Crane’s failure to test its FRP in the installation configuration it later suggested to end users constitutes negligence per se on the part of the Appellants, which also bars the assertion of the affirmative defenses of intervening or superceding cause and contributory or comparative negligence. Based on our conclusion in Divisions 1 and 2 of this opinion that Wayne Farms’s negligence per se claims fail as a matter of law, this enumeration is without merit.

Based on the foregoing, the trial court correctly denied Wayne Farms’s motion for partial summary judgment, and we affirm that decision.

Case No. A10A1538

7. Finally, R & R and Crane contend that the trial court abused its discretion by denying their joint motion for sanctions, specifically, dismissal of the case, for Wayne Farms’s alleged spoliation of evidence.

After the May 19, 2003 fire, Wayne Farms began investigating the remains of Line Three, and within two weeks of the fire, eight parties were provided notice of their potential liability by Wayne Farms and of opportunities to inspect the scene. The Appellants were not given notice at that time. By August 2003, Wayne Farms had gutted the remains of Line Three. In September 2003, Wayne Farms notified the Appellants of potential claims against them stemming from the fire. The Appellants contacted Wayne Farms in order to investigate the scene, but were told that the origin area was repaired and was not scheduled by Wayne Farms for an inspection until July 2004.

The Appellants contend that they have been prejudiced by the destruction of the fire scene prior to their investigation because they were precluded from conducting their own investigation into the fire’s origin, which they contend is essential to countering Wayne Farms’s theory of how the fire started and whether the installation of FRP with nylon rivets led to the negligent spread of the fire. Specifically, the Appellants contend that they were precluded from investigating whether the fire began in the adjacent char-marker room, which they contend is supported by Wayne Farms’s initial investigation and by employee eyewitness and firefighter accounts of the scene. The Appellants contend that Wayne Farms was legally obligated to preserve the remains of the char-marker room and its equipment along with the other remnants of Line Three, and the Appellants argue that Wayne Farms has admitted that the destruction of that evidence was prejudicial to the Appellants because examination of the char-marker itself (which Wayne Farms sold) was critical to the Appellants’ cases.

Additionally, the Appellants contend that the spoliation of the hydraulic piping system from the ceiling of the char-marker room prejudiced their ability to present an adequate defense, and the prejudice cannot be diminished through the use of other materials (other than the fire remnants) because Wayne Farms did not have an up-to-date drawing of the system at the time of the fire.

The Appellants maintain that Wayne Farms also destroyed any remnants of the nylon rivets, which they have alleged to have failed and caused the FRP to sag and catch fire, and no other fasteners, which may have been used in attaching the FRP in the oven room, were preserved.

The Appellants also contend that the investigation conducted by Wayne Farms was poorly executed and incomplete and does not diminish any prejudice from destruction of the evidence and removal of the evidence and debris from the scene. The Appellants explain that Wayne Farms did not accurately or thoroughly measure the position of equipment in the oven room in relation to the FRP at issue or thoroughly investigate the hydraulic system, including: determining whether hydraulic fluid remained after the fire, assessing the lines and pipes, or detailing where the hydraulic fluid reservoir was located (or even if one was located) on Line Three. Thus, the Appellants contend that they have been prevented from marshaling facts in support of their defenses to Wayne Farms’s claims.

(a) “Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Proof of spoliation raises a rebuttable presumption against the spoliator that the evidence favored the spoliator’s opponent. . . .” “Where a party has destroyed or significantly altered evidence that is material to the litigation, the trial court has wide discretion to fashion sanctions on a case-by-case basis.”

The trial court should weigh five factors before exercising its discretion to impose sanctions: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party who destroyed the evidence acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.

In this case, the trial court provided no explanation in support of its denial of the Appellants’ motion either at the hearing on the motion for spoliation of evidence or in its order denying the motion. In conjunction with the voluminous record involved in this case, this lack of explanation from the trial court has resulted in an arduous task of reviewing the determination; nevertheless, we are obligated to presume that the trial court knows and applies the correct law. The Appellants initially prayed for various forms of relief from the alleged spoliation, but by the conclusion of their motion, their prayer was reduced to dismissal of the case. Thus, one of two conclusions follow from the trial court’s denial of the motion: either the trial court determined that there was no spoliation of evidence attributable to Wayne Farms, or the trial court determined that dismissal, the only requested relief, was inappropriate based on the scope of any attributable spoliation.

Our review of the record establishes that Wayne Farms spoliated evidence and that spoliation has resulted in prejudice to the Appellants. According to Frank Hagan, who conducted the investigation of the fire scene, on August 11, 2003, approximately two months after the fire and one month prior to providing notice to the Appellants, Wayne Farms removed various pieces of equipment from the scene, including the two ovens, a spiral freezer, and the char-marker. A wall or remnants of a wall between the oven room and the char-marker room was demolished, and although the demolition was documented, the physical remains of the wall itself were not preserved. Because Wayne Farms disposed of the char-marker, spiral freezer, and steam chamber, the Appellants have not had an opportunity to investigate those artifacts, and although some remnants of the ceiling of the char-marker room and oven room remained in evidence, the Appellants were unable to investigate or document the in-place remnants of the ceiling of the oven and char-marker rooms.

Wayne Farms argues that there was no abuse of discretion by the trial court in denying the spoliation motions because the missing char-marker and any evidence from the char-marker room is inapplicable to the proceedings because the origin of the fire is not at issue in this case. The reasoning here, however, assumes the conclusion reached by Wayne Farms’s experts that the fire started in the manner they have alleged. In defending the fire spread claims, however, the Appellants have been hampered in presenting their defense to the claims because they were prevented from supporting their theory that the fire started in another location and that Wayne Farms’s theory as to their negligence is incorrect. Contrary to Wayne Farms’s argument, if the fire’s origin was not in the oven or anywhere underneath the FRP ceiling of Line Three — for instance, above the Line Three ceiling instead — then the failure of the nylon rivets would not have caused the flames to spread as they did. Under these circumstances, the ability to examine the char-marker, other machines, the hydraulic system, and remnants of the FRP intact immediately after the fire would have enhanced the Appellants’ ability to refute the claims alleged by Wayne Farms.

The photographs and video of the scene are helpful in reconstructing the state of the evidence for the Appellants’ experts, but this Court has opined on numerous occasions that “[although the existence of photographs may mitigate the loss, they are no substitute for the actual evidence.”

With regard to their claims, Wayne Farms contends that testing on any Lasco Class C FRP with any nylon rivets will be possible, and thus, the Appellants have not been prejudiced by destruction of the actual fire remains; however, the Appellants were not given an opportunity to investigate whether there were remains of the nylon rivets at the scene or determine the state of the rivets or how they may have detached, if at all, from the ceiling, which evidence may have refuted Wayne Farms’s contentions.

(b) Nevertheless, although we have determined that Wayne Farms spoliated evidence to the detriment of the Appellants, we cannot conclude that the trial court abused its discretion by denying the joint motion for sanctions based on spoliation. Normally, a trial court has available a range of sanctions to impose in the event that it determines spoliation has occurred. Here, however, the Appellants failed to seek a remedy other than dismissal in their motion for reconsideration of the trial court’s order denying their motion for sanctions for spoliation, and the Appellants’ brief before this Court argues that the trial court erred by failing to dismiss the case, but does not allege error for failing to grant another form of relief. Dismissal is usually reserved for cases involving malicious destruction of evidence, which does not appear to be the case here. We are unable, as a matter of law, to hold that the trial court abused its discretion by declining to impose the ultimate remedy available to a court in a case of spoliation. It does not appear from the record that Wayne Farms maliciously destroyed evidence, and the ability of the Appellants to present a defense has not been so diminished as to be impossible or improbable. Accordingly, the trial court’s order denying the Appellants’ motions to dismiss based on spoliation of evidence is affirmed.

Decided November 24, 2010

Reconsiderations denied December 15, 2010.

Thompson & Hine, Seth A. Litman, Leslie J. Suson, Smith, Moore & Leatherwood, Edward M. Newsom, for appellant.

King & Spalding, Michael M. Raeber, William L. Durham II, Jessica E. Sabbath, Cozen & O’Connor, Michael A. McKenzie, Jefferson C. McConnaughey, Baker, Donelson, Bearman, Caldwell & Berkowitz, Steven G. Hall, Karen D. Fultz, M. Yusuf Mohamed, for appellees.

Judgments affirmed in part and reversed in part.

Andrews, P. J., and Ellington, J., concur.

         Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Life Safety Code § 6-5.2.1.

       Id.

       (Punctuation omitted.) Norman v. Jones Lang LaSalle Americas, Inc., 277 Ga. App. 621, 627-628 (2) (b) (627 SE2d 382) (2006).

       (Citations and punctuation omitted.) Brazier v. Phoenix Group Mgmt., 280 Ga. App. 67, 70 (1) (a) (633 SE2d 354) (2006).

       See, e.g., Combs v. Atlanta Auto Auction, 287 Ga. App. 9, 13-14 (3) (650 SE2d 709) (2007) (holding that accident would have occurred regardless of whether defendant violated ordinance).

       See id. (theory of liability was foreclosed by failure to produce evidence of proximate cause). See also Lau’s Corp., 261 Ga. at 491.

       (Punctuation omitted.) Dozier Crane & Machinery v. Gibson, 284 Ga. App. 496, 499 (2) (644 SE2d 333) (2007).

       We note that the record in this case is voluminous — consisting of more than seventy volumes in the main record, two supplemental records, and thousands of pages. Moreover, the trial court’s order denying the motions at hand consists of a one-sentence denial of each motion without further explanation. Thus, in order to conduct a de novo review of the record, our reliance on counsel for appropriate citation to the record was great; it is incumbent not only upon the party alleging error, but also upon the party urging affirmance to support their position with appropriate record citations in support of their arguments. See, e.g., Lau’s Corp., 261 Ga. at 491 (nonmovant may not rest on his pleadings, but must point to specific, competent evidence giving rise to a triable issue); Wilson v. Mallard Creek Holdings, 238 Ga. App. 746, 747-748 (519 SE2d 925) (1999) (parties must supply citation to the record to support their claims).

       (Punctuation omitted.) Dozier Crane & Machinery, 284 Ga. App. at 499 (2).

       (Punctuation omitted.) Moore v. ECI Mgmt., 246 Ga. App. 601, 606 (2) (542 SE2d 115) (2000).

       (Citation and punctuation omitted.) Omark Indus. v. Alewine, 171 Ga. App. 207, 208-209 (319 SE2d 24) (1984).

       See Niles v. Bd. of Regents &c., 222 Ga. App. 59, 61 (2) (473 SE2d 173) (1996).

       (Citation and punctuation omitted.) Id.

       See Boyce v. Gregory Poole Equip. Co., 269 Ga. App. 891, 895-898 (1) (c) (605 SE2d 384) (2004).

       Compare Niles, 222 Ga. App. at 60-61 (1) (holding that no duty existed to warn a doctoral physics student who graduated with highest honors in chemistry about dangers of mixing chemicals or about the necessity to take precautions before doing so).

       We specifically note that in 1993, Wayne Farms may have conducted its own in-house testing of FRP and its potential installation methods, resulting in an in-house determination that only Class A FRP with metal fasteners be utilized in sensitive areas of the plant. We do not find the documents produced before the trial court conclusive of this fact, however, although reasonable inferences may ultimately be drawn by the jury based on the documents and related testimony.

       See Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350) (1993) (Because “the product was sold to a commercial operator which may reasonably have been expected to be familiar with the dangers resulting from such misuse or neglect, we do not believe that the manufacturer’s failure to warn of such dangers may be considered the proximate cause of the injury. To hold otherwise would be to place upon the manufacturer the impossible task of cataloging every conceivable way in which injury might result from the negligent operation or maintenance of a product.”) (punctuation omitted).

       See id. (“Whether a duty to warn exists depends upon foreseeability of the use in question. . . .”) (punctuation omitted).

       See, e.g., White v. Ga. Power Co., 265 Ga. App. 664, 666 (1) (595 SE2d 353) (2004) (“The danger from fire or water is one that even young children may be said to apprehend.”) (punctuation omitted).

       Compare with id. (danger of drowning in deep water or being burned by a fire are open and obvious dangers); Moore, 246 Ga. App. at 607 (2) (“The danger of electrocution from miswiring an electrical appliance should be both open and obvious to an experienced installer.”).

       See Eyster v. Borg-Warner Corp., 131 Ga. App. 702, 706 (4) (206 SE2d 668) (1974).

       See Boyce, 269 Ga. App. at 897 (1) (c) (2).

       For the same remaining factual questions, we find that Wayne Farms’s negligent misrepresentation claims as to the flame spread qualities of Lasco Class C FRP and whether Crane negligently supplied information based on testing that lacked information regarding each fastening device must also proceed past summary judgment. See id. at 898-899 (2).

       See Deloach v. Rovema Corp., 241 Ga. App. 802, 804 (527 SE2d 882) (2000) (seller’s liability limited to dangers known at time of the product sale). Compare Boyce, 269 Ga. App. at 896-897 (1) (c) (2) (investigation by seller may impose additional duty to warn of defect).

       See Deloach, 241 Ga. App. at 804. Additionally, Wayne Farms’s own employees purchased nylon rivets at various home improvement stores and would have been provided with the same warnings and information about the product, whatever those warnings and information may be.

       See Lau’s Corp., 261 Ga. at 491.

       See Farmer v. Brannan Auto Parts, 231 Ga. App. 353 (498 SE2d 583) (1998).

        See Niles, 222 Ga. App. at 61-62 (2), (3); Exxon Corp., 209 Ga. App. at 375; Eyster, 131 Ga. App. at 706 (4).

        Miller v. Ford Motor Co., 287 Ga. App. 642, 644 (1) (653 SE2d 82) (2007).

       See Division 1, supra.

       (Punctuation omitted.) Hudgins v. Bacon, 171 Ga. App. 856, 861 (3) (321 SE2d 359) (1984).

       Compare id. at 858 (1).

       R & R also asserted various affirmative defenses, but based on our holding in Divisions 4 (b), 4 (c), and 5, we address the appeal of these defenses as to Crane, the only remaining defendant.

       (Citations and punctuation omitted.) Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 682 (1) (689 SE2d 62) (2009).

        See Butler v. Pittway Corp., 770 F2d 7 (2nd Cir. 1985); Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., 466 F2d 179, 184 (8th Cir. 1972) (arguing that delay in the detection of the fire caused the extensive destruction and resulted from defendant’s failure to have a watchman on the premises).

       See Weyerhaeuser Co. v. Thermogas Co., 620 NW2d 819, 826 (2001); Evans Cabinet

        Corp. v. “Automatic” Sprinkler Corp. &c., 167 Ga. App. 502 (306 SE2d 750) (1983); Cartel Capital Corp. v. Fireco of New Jersey, 410 A2d 674, 682 (1980); Doyle v. South Pittsburgh Water Co., 414 Pa. 199 (1964).

       See Fireman’s Fund Ins. Co., 466 F2d at 183 (holding that “[i]f an owner of property negligently allows the spread of a fire on his premises, he may be liable for injury to others even though he has no connection with the fire’s origin”); Chicago &c. R. Co. v. Poarch, 292 F2d 449 (9th Cir. 1961) (fire spread from defendant’s property onto the property of the plaintiff); Atmore Truckers Assn. v. Westchester Fire Ins. Co., 218 F2d 461 (5th Cir. 1955).

       See, e.g., Heston v. Lilly, 248 Ga. App. 856, 857 (1) (546 SE2d 816) (2001) (jury determines what loss or damage flows from a party’s negligence).

       See, e.g., Dept. of Transp. v. Taylor, 264 Ga. 18, 21 (3) (c), n. 2 (440 SE2d 652) (1994) (a motion for summary judgment is an appropriate vehicle for addressing the insufficiency of a party’s evidence, while a motion in limine is the appropriate vehicle for addressing issues of inadmissibility on the basis of relevance or undue prejudice).

       See AMLI Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 361 (1) (667 SE2d 150) (2008).

       (Punctuation omitted.) DeCastro v. Durrell, 295 Ga. App. 194, 205 (3) (671 SE2d 244) (2008).

        AMLI Residential Properties, 293 Ga. App. at 361 (1).

       (Punctuation omitted.) Id.

       See Munoz v. American Lawyer Media, 236 Ga. App. 462, 466 (2) (512 SE2d 347) (1999); Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (3) (b) (399 SE2d 712) (1990).

       See, e.g., Kitchens v. Brusman, 303 Ga. App. 703, 704 (1) (694 SE2d 667) (2010). Additionally, the Appellants’ motion for reconsideration fails to argue that the trial court should have granted another form of relief and, again, prayed only for dismissal of the claims.

        Bridgestone/Firestone North American Tire v. Campbell, 258 Ga. App. 767, 769 (574 SE2d 923) (2002).

       See R. A. Siegel Co. v. Bowen, 246 Ga. App. 177, 182 (2) (539 SE2d 873) (2000).

       Cf. Bridgestone/Firestone North American Tire, 258 Ga. App. at 771 (addressing only the issue of whether the trial court should have granted harsher sanctions). Compare with Kitchens, 303 Ga. App. at 709-710 (1) (c) (remanding for the trial court to fashion the appropriate remedy for spoliation of the evidence based on the specific facts of the case).

       See Pritchett v. Afzal, 293 Ga. App. 302, 303 (1) (666 SE2d 641) (2008).

       See Bridgestone/Firestone North American Tire, 258 Ga. App. at 770.

       See id. at 771 (holding that, although the trial court would have been authorized to dismiss the complaint based on the plaintiffs spoliation of evidence, it was not mandated as a matter of law to so rule). But see Baxley v. Hakiel Indus., 282 Ga. 312, 313-314 (647 SE2d 29) (2007) (reversing this Court’s affirmance of the trial court and holding that it was an abuse of discretion not to impose sanctions for spoliation of a video tape, even if the video did not contain images of the purported drunk driver); Kitchens, 303 Ga. App. at 709-710 (1) (c) (holding that the trial court abused its discretion by denying motion for sanctions for spoliation of evidence and remanding for consideration of determination of an appropriate remedy).

       We note that a trial court may revise an interlocutory ruling at any time prior to final judgment notwithstanding any holding herein that is now binding on the trial court below. See OCGA § 9-11-60 (h); Lott v. Arrington & Hollowell, PC., 258 Ga. App. 51, 56 (3) (572 SE2d 664) (2002). See also Moon v. State, 287 Ga. 304, 306-308 (1) (696 SE2d 55) (2010) (Nahmias, J., concurring).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A10A1050.
    THE STATE v. HOOD et al.
    (706 SE2d 566)
   Adams, Judge.

The underlying procedural history relevant to this appeal is undisputed. On March 24, 2009, the Fulton County Grand Jury returned a multi-count indictment against twelve defendants; Count 1 of the indictment charged the defendants with participating in criminal street gang activity in violation of OCGA § 16-15-4 “for the said accused,... on and between January 1, 2007 and June 18, 2008 did unlawfully, while associated with a criminal street gang, known as 30 Deep participate in such criminal street gang activity [by committing certain predicate offenses].” The defendants filed general and special demurrers to the indictment, with subsequent amendments, moving to quash Count 1. Defendants argued that, among other things, the indictment failed to allege when “30 Deep” became a criminal street gang as defined by OCGA § 16-15-3 (2) and failed to adequately give the offense date, which they asserted prevented them from presenting their defenses, including their contention that certain enumerated offenses occurred prior to the formation of “30 Deep” as a criminal street gang. The trial court held a hearing on defendants’ motions and demurrers, during which the State opposed the demurrers.

Following the hearing, the trial court granted the special demurrer as to Count 1 of the indictment and quashed that count, finding that the date the gang formed was a material element of the crime of participating in criminal street gang activity and that the State was required to, but had failed to, allege that the gang existed, even for a short period, prior to the commission of the enumerated offenses. The tried court further found that even if the indictment sufficiently alleged the gang’s existence prior to the commission of the enumerated crimes, the indictment nevertheless did not comply with OCGA § 17-7-54 because the State had failed to respond to defendants’ special demurrers by alleging a specific date on which the gang came into existence or existed prior to the alleged occurrence of the enumerated offenses and offered no evidence demonstrating that such a date could not be specifically identified. The State appeals.

As noted above, defendants in this case filed both general and special demurrers. A general demurrer challenging the sufficiency of the substance of the indictment is appropriate when the indictment is “fatally defective and incapable of supporting a conviction.” (Punctuation omitted.) State v. Delaby, 298 Ga. App. 723, 724 (681 SE2d 645) (2009). See also Bramblett v. State, 239 Ga. 336, 337 (1) (236 SE2d 580) (1977). “The true test of the sufficiency of the indictment to withstand a general demurrer ... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. [Cit.]” (Punctuation omitted.) Adams v. State, 293 Ga. App. 377, 381 (3) (667 SE2d 186) (2008).

“A special demurrer challenges the sufficiency of the form of the indictment.... [Cit.]” Bramblett, 239 Ga. at 337 (1). In that case, the defendant claims that the indictment is “imperfect as to form or that the accused is entitled to more information.” (Punctuation omitted.) Delaby, 298 Ga. App. at 724. When technical defects in the indictment are timely raised, “[t]he defendant is entitled ... to have a perfect indictment in form as to the essential elements of time and place.” (Punctuation omitted.) Johnson v. State, 233 Ga. App. 450, 450-451 (1) (504 SE2d 290) (1998). Indictments that do not allege a specific date on which the crime was committed are not perfect in form and are subject to a timely special demurrer. Moore v. State, 294 Ga. App. 570, 576 (2) (669 SE2d 498) (2008). “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.” State v. Layman, 279 Ga. 340, 341 (613 SE2d 639) (2005). To that end, the State must be given the opportunity to present evidence concerning whether the offense dates are capable of being more specifically stated. Moore, 294 Ga. App. at 576-577 (2). But “[w]here the State [is] reasonably capable of narrowing the range of dates alleged in the indictment, it must do so.” Layman, 279 Ga. at 341.

We review rulings on special demurrers de novo. State v. Pittman, 302 Ga. App. 531 (690 SE2d 661) (2010). Moreover, we do not conduct a harmless error analysis to determine if the accused has actually been prejudiced by the lack of a specific date in the indictment when we review an indictment before trial. State v. Gamblin, 251 Ga. App. 283, 284 (1) (553 SE2d 866) (2001). “[Rjather, 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.” Delaby, 298 Ga. App. at 724.

Against this backdrop, we turn to the issues presented here. The State enumerates two errors, contending that the trial court erred by requiring the indictment to allege that a criminal street gang existed prior to the commission date of any of the enumerated offenses and that it erred in requiring the indictment to allege a specific date on which the criminal street gang came into existence.

1. In this case, the indictment accused the defendants of participating in criminal street gang activity

for the said accused,... on and between January 1, 2007 and June 18, 2008, did unlawfully, while associated with a criminal street gang, known as 30 Deep participate in such criminal street gang activity to wit: [specified enumerated offenses] as described in counts 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 of this indictment. . . .

Thus, the indictment substantially tracks the language of OCGA § 16-15-4 (a) and was sufficient to withstand a general demurrer. State v. Ramirez-Herrara, 306 Ga. App. 878, 880 (2) (703 SE2d 429) (2010).

But relying on the Supreme Court case of Rodriguez v. State, 284 Ga. 803 (671 SE2d 497) (2009) the trial court found that the indictment failed to allege that the gang existed, even for a short period, prior to the alleged commission of the enumerated offenses, and concluded that the indictment was subject to demurrer on that basis alone. As is pertinent here, the Court in Rodriguez held that the Anti-Gang Act requires that (1) the defendant actively participated in an illicit street gang, which is defined in OCGA § 16-15-3 (2) as any group of three or more people associated in fact that “engages in criminal gang activity”; (2) the defendant committed at least one predicate act enumerated in OCGA § 16-15-3 (1); and (3) there is a nexus between defendant’s commission of the predicate act and an intent to further the gang activity. Rodriguez, 284 Ga. at 806-807 (l). The Court expounded on the definition of the word “engages” as found in OCGA § 16-15-3 (2), stating that “[although the ‘criminal street gang’ may have existed for a short time, its ‘criminal gang activity’ or plans for continuation of that activity must be ongoing at the time of the defendant’s commission of an enumerated offense.” Id. at 808-809 (2).

The State argues that this language in Rodriguez should not be read to require an allegation that the gang existed prior to the commission of the enumerated offenses and that the indictment here, taken as a whole, and “viewed in the context of the specific predicate acts alleged in Counts 2 through 16, dating from February 4, 2008 to June 18, 2008,” was sufficient. We agree and find that the indictment here sufficiently alleged that the criminal street gang was in existence and ongoing at the time of the commission of the enumerated offenses. Moreover, we agree with the State that it was not necessary for the indictment also to contain a specific allegation that the gang existed prior to the commission of any of the enumerated offenses, or to include a specific enumerated offense that was committed prior to the commission of any of the enumerated offenses in this case.

Decided December 15, 2010.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant.

Bobby D. Wilson, Monique R. Walker, Barbara L. Jennings, Andre M. Johnson, Rodney A. Williams, Cynthia Adams, Jonathan H. Fain, Maxwell Schardt, Jeffrey W. Frazier, for appellees.

Gwendolyn Keyes Fleming, District Attorney, Michael S. Carlson, Deborah D. Wellborn, Assistant District Attorneys, John E. Floyd, Lee W. Shafer, amici curiae.

2. That does not end our inquiry, however, because in this case the defendants also specially demurred, contending that the date the gang came into existence must be stated with more specificity, especially in light of their defense that the gang did not yet exist when at least some of the predicate offenses were committed. The trial court agreed and held that the indictment was also subject to demurrer on the basis that the State failed to allege a specific date on which the gang came into existence and failed to show why it was not reasonably capable of narrowing the range of dates set forth in the indictment. Bollinger v. State, 272 Ga. App. 688, 693 (3) (613 SE2d 209) (2005).

In this case a date certain was provided for each of the enumerated offenses. Moreover, as found in Division 1, the indictment sufficiently alleged that the gang was in existence and ongoing at the time the enumerated offenses were allegedly committed. Based upon these dates, the defendants have all the information they need to formulate a defense that the gang did not exist at the time of each enumerated offense. The trial court’s order is accordingly reversed.

Judgment reversed.

Smith, P. J., and Mikell, J., concur.

       Although the facts here are undisputed, this Court’s task was made more difficult by the dearth of citations in the State’s original brief on appeal, making it necessary for this Court to search the record to find the pertinent motions and rulings. However, we would like to further note that our consideration of this appeal has been greatly aided by the State’s brief in support of its motion for reconsideration as well as the amicus briefs filed by the DeKalb County District Attorney and Georgia Gang Investigators Association.

       The defendants named in the indictment were Marquez Deonte Hood, Slyricus Winder, Kendarious Glover, Undra Bradley, Charles Dunn, Anthony Maurice Johnson, Deyancious Lewis, Kenny Redding, Willie Wilson, Johntavious Bailey, Barry Dean Smith, and Rodriquez Wheeler.

       The provisions of the Georgia Street Gang Terrorism and Prevention Act are contained at OCGA § 16-15-1 et seq.

       Although the record before us does not include all the demurrers that were apparently filed, it appears from the hearing transcript that all defendants either filed their own motions and demurrers or joined in the demurrers filed by other defendants.

       According to the trial court’s order, the State did not file a written response to the motions and demurrers.

       The trial court also noted in its order that the State did not challenge the timeliness of the demurrers.

       The defendants argue in their briefs on appeal that because the State referenced OCGA § 16-15-4 without specifying a particular subsection, they must be prepared to defend against all the activities prohibited in that section, with the result that the indictment must also allege certain other dates. However, a clear reading of the indictment shows that defendants were charged only under subsection (a) of OCGA § 16-15-4, and we will confine our analysis accordingly.

       Pursuant to OCGA §16-15-3 (1), “criminal gang activity” means the commission, attempted commission, or conspiracy to commit any enumerated offense, as well as the solicitation, coercion, or intimidation of another person to commit such offenses on or after July 1, 2006.

       As the amicus brief points out, the statute does not make it illegal to be a member or associate of a criminal street gang. Rodriguez, 284 Ga. at 810 (4) (“mere association” with a criminal street gang is insufficient).


author: Phipps, Presiding Judge.

text:
    A10A0935.
    A10A0936.
    RUCKER et al. v. COLUMBIA NATIONAL INSURANCE COMPANY. AMERICAN HOME SHIELD CORPORATION v. COLUMBIA NATIONAL INSURANCE COMPANY.
    (705 SE2d 270)
   Phipps, Presiding Judge.

Columbia National Insurance Company brought a declaratory judgment action to determine its obligations, pursuant to a business owner’s liability insurance policy, to defend or indemnify parties in a wrongful death and personal injury (“wrongful death”) action. Columbia moved for summary judgment in the declaratory action, which the trial court granted, finding that Columbia had no duty to defend or indemnify parties in the wrongful death action. In Case No. A10A0935, the plaintiff in the wrongful death action appeals from the grant of Columbia’s motion for summary judgment in the declaratory action. In Case No. A10A0936, one of the defendants in the wrongful death action appeals from the grant of Columbia’s summary judgment motion in the declaratory action. For the reasons that follow, we affirm the judgments in both cases.

According to the underlying complaint, in July 2006, Anthony and Rhonda Rucker contracted with American Home Shield Corporation (“AHS”) for the latter to service or replace appliances in their home. Pursuant to this contract, Jeffery Taylor d/b/a Pro Tech Appliance Service (“Taylor”), an AHS service contractor, was retained to perform appliance repair work at the Rucker home. In September 2006, one of Taylor’s trainees, Leon Phillips, Jr., entered the Rucker home “under color of employment with” Taylor. While there, Phillips assaulted and killed Rhonda Rucker and assaulted and kidnapped her son. Taylor had hired Phillips without having conducted a criminal background check; such an investigation would have revealed a history of violent crime. The record shows that in 1988, Phillips had pleaded guilty to armed robbery and aggravated assault with intent to rape.

In August 2008, Anthony Rucker and Sarah Farmer, as guardian of Rhonda Rucker’s son (collectively, Rucker), filed an action for wrongful death against Phillips, Taylor and AHS. Rucker alleged, inter alia, that Taylor was liable because he had hired and retained Phillips without having made any inquiry into Phillips’s criminal background. Rucker alleged, among other things, that AHS was liable because it had breached its contract with him by failing to screen and monitor service technicians.

Taylor maintained a Contractor’s Business Owners Policy with Columbia, which provided that Columbia would “pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury,’ ‘property damage’ or ‘personal and advertising injury’ to which this insurance applies,” and that Columbia would “have the right and duty to defend the insured against any ‘suit’ seeking those damages.” It further provided that the insurance applied to bodily injury only if the bodily injury was caused by an “occurrence.” The policy defined occurrence as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy stated that “insured” included any person or organization for whom the named insured was performing operations, and that such person or organization was an additional insured only with respect to liability arising out of the insured’s ongoing operations performed for that insured. AHS did not have an insurance policy with Columbia, but claimed to be an additional insured pursuant to the terms of Taylor’s policy.

In February 2009, Columbia brought a declaratory judgment action asking the court to declare that it had no duty to defend or indemnify Taylor or AHS because the injury of which Rucker complained in the wrongful death lawsuit resulted not from an “occurrence” within the meaning of the policy, but from the intentional, criminal acts of Phillips, and also because the injury came within a policy provision excluding coverage for bodily injury “expected or intended from the standpoint of the insured.” The trial court granted Columbia’s motion for summary judgment in the declaratory action.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant of summary judgment, we conduct a de novo review, construing the evidence and all reasonable conclusions and inferences drawn therefrom in the light most favorable to the nonmovant.

Case No. A10A0935

1. Rucker contends that the trial court erred in granting summary judgment to Columbia based on its determinations that the crimes committed by Phillips did not constitute an “occurrence” as defined by the policy and that the injury came within the policy’s exclusion for “expected or intended” injury. Rucker concedes in his brief that Phillips’s actions “were intentional and do not constitute an ‘accident’ under Columbia’s policy.” Rather, Rucker asserts that the occurrence underlying his claim was an action of Taylor — his failure to abide by his agreement with AHS to perform a criminal background check of his prospective employee.

(a) We find no merit in Columbia’s contention that this argument is not properly before us because Rucker did not raise it below. The Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the Act. Rucker alleged in his complaint, among other things, that Taylor hired Phillips without having made any inquiry into his criminal background, that Taylor breached his duty of ordinary care by hiring or retaining Phillips in light of his criminal background, that AHS had represented to the Ruckers that its service technicians were pre-screened, insured and regularly monitored, that AHS had breached its contract with the Ruckers by failing to monitor and screen Taylor and Phillips and that had AHS performed its contractual responsibilities it would have known that Phillips was dangerous and that Taylor was not properly monitoring or screening prospective employees.

Further, in his motion for summary judgment, Rucker argued that his claim against Taylor arose not out of the intentional acts of Phillips, but out of Taylor’s negligent hiring and retention of Phillips and his failure to follow his own policies with respect to performing criminal background checks. Rucker included with his motion a copy of an AHS document which Taylor had signed verifying that he had completed background checks on his current employees and agreeing to obtain background checks on all prospective employees. And at the hearing on the motion for summary judgment Rucker argued that, notwithstanding that agreement, Taylor had failed to perform a background check on Phillips. Rucker again asserted that the intentional acts of Phillips were not the basis of his claim against Taylor, but his claim arose “from his failure to conduct a background check upon Phillips as required in Taylor’s written agreement with [AHS] and, by extension, with the Ruckers.”

The argument was raised below. And it was ruled upon when the trial court granted summary judgment to Columbia after determining that the claim did not constitute an occurrence and, furthermore, that it came within a policy exclusion. Accordingly, the issue is properly before us.

(b) In Georgia,
the parties to an insurance policy are bound by its plain and unambiguous terms. Although the provisions of an insurance policy will be construed against the insurer when a part is susceptible of two constructions and a court will adopt that interpretation which is most favorable to the insured, if the language is unambiguous and but one reasonable construction is possible, the court will enforce the contract as written. Interpretation of policy provisions which are plain and definite is a matter of law for the trial court, and a policy provision is not ambiguous even though presenting a question of construction, unless and until an application of the pertinent rules of construction leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.

The policy here was not ambiguous. As stated above, the policy defined occurrence as an accident. While it did not define accident, in Georgia “accident” is defined as an event which takes place without one’s foresight, expectation or design. In an insurance policy, an accident is an unexpected happening rather than one occurring through intention or design. The question of whether an event took place without one’s foresight, expectation or design must be asked from the viewpoint of the insured. To establish a prima facie case on a claim under a policy of insurance, the insured must show the occurrence was within the risk insured against.

Rucker argues that Taylor’s act of not performing a background check on Phillips was a negligent act, and that a negligent act can constitute an occurrence or accident under a liability insurance policy. During discovery, Taylor deposed that Phillips was not an employee, but a trainee. Taylor trained people to become technicians and he conducted criminal background checks on them only if they had progressed to the point where he thought he would hire them. Taylor stated that he never performed criminal background checks on trainees because he was not sure if they were going to be interested in the work or if they were going to “get it.” Because Taylor intended to forego conducting a background check on Phillips, the omission was an event that took place with Taylor’s foresight, expectation or design. The event upon which Rucker’s claim was based was therefore not a covered occurrence. The bodily injury was not caused by an occurrence (accident) and was not within the risk insured against. Accordingly, the policy did not provide coverage for the claim asserted, and the trial court did not err in determining that Columbia had no duty to defend or indemnify Taylor.

(c) Because there was no covered occurrence under the policy, we need not consider the applicability of any policy exclusions.

2. Rucker contends that the trial court abused its discretion by entering an order the day after hearing oral arguments on the summary judgment motion when it had agreed to leave the record open for ten days to allow the filing of supplemental briefs. Rucker has not indicated or shown how he was harmed by the court’s action. We note that more than five months elapsed between the date Columbia filed its summary judgment motion and the date of the hearing. It appears that Rucker was given full and fair notice and opportunity to respond to Columbia’s motion for summary judgment on the grounds raised therein prior to judgment being entered on those grounds. And, as Rucker concedes, the trial court has the power to reverse or vacate its orders in the same term of court, and there is no claim that the court reversed its ruling beyond the term. The asserted error presents no basis for reversal.

3. Rucker contends that the trial court erred in failing to find a provision of the policy ambiguous. The provision at issue concerned the applicability of an exclusion. As discussed above, because Rucker’s claim is not based on a covered occurrence, we need not decide the applicability of any policy exclusions.

Case No. A10A0936

4. AHS contends that the trial court erred in holding that the claim asserted against it was not covered under the insurance policy. We disagree.

Rucker’s complaint alleged that AHS breached its contract with him by failing to regularly monitor and screen its service technicians. Assuming, without deciding, that AHS was an additional insured under Taylor’s policy with Columbia, it had the burden of showing a covered occurrence under the policy. But the complaint does not allege, and AHS has not shown, that the failure to monitor and screen technicians was an “unexpected happening” that took place without AHS’s foresight, expectation or design, and thus has not shown that the injury was caused by an occurrence within the meaning of the policy. In fact, as noted in Division 1 (b), a breach of contract is not an occurrence or accident. Accordingly, the trial court did not err in determining that there was no occurrence. There being no coverage, we do not reach the issues of whether an exclusion applies or whether AHS qualified as an additional insured under the policy.

Judgments affirmed.

Miller, C. J., and Johnson, J., concur.

Decided December 1, 2010

Reconsideration denied December 16, 2010

Neil W. Putnam, for appellants (case no. A10A0935).

Sommers, Scrudder & Bass, Teddy L. Sutherland, Matthew P. Lazarus, for appellant (case no. A10A0936).

Hicks, Casey & Foster, Lisa K. Whitfield, for appellee.

       See Scott v. Govt. Employees Ins. Co., 305 Ga. App. 153, 155 (1) (700 SE2d 198) (2010) (an insurer’s duty to defend turns on the language of the contract and the allegations of the complaint; courts look to allegations of complaint to determine whether a claim covered by the policy is asserted).

        Allstate Ins. Co. v. Neal, 304 Ga. App. 267 (696 SE2d 103) (2010).

       Id.

        Mohawk Indus. v. Clark, 259 Ga. App. 26, 27 (576 SE2d 16) (2002).

        QBE Ins. Co. v. Couch Pipeline &c., 303 Ga. App. 196, 198 (1) (692 SE2d 795) (2010) (citation omitted).

        Nationwide &c. Ins. Co. v. Somers, 264 Ga. App. 421, 426 (3) (a) (591 SE2d 430) (2003); QBE Ins. Co., supra at 198-199.

        Custom Planning &c. v. American &c. Ins. Co., 270 Ga. App. 8, 9-10 (1) (606 SE2d 39) (2004).

       See Cincinnati Ins. Co. v. Magnolia Estates, 286 Ga. App. 183, 185 (648 SE2d 498) (2007); Crook v. Ga. Farm &c. Ins. Co., 207 Ga. App. 614-615 (428 SE2d 802) (1993).

        Perry v. State Farm Fire &c. Co., 297 Ga. App. 9, 11 (1) (676 SE2d 376) (2008).

       See SawHorse, Inc. v. Southern Guaranty Ins. Co. &c., 269 Ga. App. 493, 498-499 (2) (b) (604 SE2d 541) (2004) (faulty workmanship can constitute an occurrence within meaning of general commercial liability policy, where insurer has pointed to no evidence that insured intended for the faulty workmanship to occur).

       See Perry, supra.

        See Allstate Ins. Co., supra at 270 (1); O’Dell v. St. Paul Fire &c. Ins. Co., 223 Ga. App. 578, 580 (1) (478 SE2d 418) (1996) (employee’s claims alleging sexual harassment and assault and battery by employee of insured did not constitute an occurrence pursuant to liability insurance policy because acts were intentional, not taking place without one’s foresight, expectation or design). See also Custom Planning &c., supra at 10 (occurrence/accident does not include breach of a contract); Ga. Farm &c. Ins. Co. v. Hall County, 262 Ga. App. 810, 813 (1) (586 SE2d 715) (2003) (failure of property seller to inform buyer of condemnation and lien was not an occurrence/accident under policy). Compare Cincinnati Ins. Co., supra (where claims were based on negligence, premises liability and breach of contract, attack on nursing home resident by fellow resident occurred without nursing home’s foresight, expectation or design, so injuries were accidental for purposes of coverage); Crook, supra at 615 (insurer obligated to defend insured in underlying tort action because plaintiffs’ son had caused his own death and there were no allegations that the insured, a bystander, intentionally caused the death with foresight, expectation or design).

       See Perry, supra.

       Id.

        See Allstate Ins., supra at 270 (2).

       See All Tech Co. v. Laimer Unicon, LLC, 281 Ga. App. 579, 581 (2) (636 SE2d 753) (2006).

       See Stamps v. Nelson, 290 Ga. App. 277, 278 (1) (659 SE2d 697) (2008).

        See Allstate Ins. Co., supra.

       See Perry, supra at 11 (1).

       See id.

       See id.; Custom Planning &c., supra; Ga. Farm &c. Ins. Co., supra.

       See Perry, supra.

        Custom Planning &c., supra.

        See Allstate Ins. Co., supra.


author: Mikell, Judge.

text:
    A10A1095.
    PRONVEST, INC. et al. v. LEVY et al.
    (705 SE2d 204)
   Mikell, Judge.

ProNvest, Inc., and Signix, Inc., plaintiffs below, appeal from the trial court’s grant of summary judgment against them on all of their claims against Craig Levy, a former employee of Signix. Plaintiffs also named DocuSign, Inc., the company which hired Levy following his employment with Signix, as a joint defendant with Levy.

Two orders were entered by the trial court on September 29, 2009, one granting summary judgment to Levy and the other granting summary judgment to DocuSign, Inc., on all plaintiffs’ claims. A notice of appeal was filed on October 29, 2009, stating that plaintiffs/appellants were appealing both orders granting summary judgment. An amended notice of appeal was filed on January 6, 2010, stating that “Plaintiffs’ original Notice of Appeal . . . also included an appeal from the September 29, 2009 order granting DocuSign’s motion for summary judgment. . .. Plaintiffs hereby withdraw their appeal of the DocuSign Order ” (Emphasis supplied.)

1. In their first enumeration of error, appellants contend that “[t]he trial court erred in requesting that Levy’s counsel draft the order granting Levy’s motion for summary judgment and adopting that order without notice to Appellants’ counsel and without giving Appellants’ counsel an opportunity to respond.”

The only record citations put forth in support of this argument are to the first page of the trial court’s 13-page order granting summary judgment to Levy, which contains nothing to indicate by whom it was drafted, and to the billing statement of Levy’s counsel, submitted in support of his motion for attorney fees, which states: “28-Aug-09 Preparation of Proposed Order 14 pages.” The transcript of the hearing on the motions for summary judgment does not show that the trial court made a request of counsel for a proposed draft of the order, and there is no showing that the proposed order is the one entered by the trial court. Therefore, appellants have failed to carry their burden and establish error.

2. Appellants’ remaining enumerations of error fail because, in its order granting summary judgment to DocuSign, Inc., the trial court ruled conclusively on all of the issues appellants raise as error.

As stated above, appellants have specifically withdrawn their appeal of the trial court’s order granting summary judgment to DocuSign, Inc., on all claims made against it. That order found that the Georgia Trade Secrets Act (“GTSA”), OCGA § 10-1-760 et seq., explicitly abolishes all other causes of action predicated on the alleged misappropriation of trade secrets, except breach of contract. Specifically, the GTSA preempts claims where the plaintiffs tort claims rely on the same allegations as those underlying the plaintiffs claim for misappropriation of a trade secret.

Further, that order concluded that the employment contract signed by Levy and the Salesforce.com agreement, the breach of which underpinned all claims against Levy and DocuSign, Inc., were legally unenforceable. Additionally, that order found that “Docu-Sign’s receipt of Mr. Levy’s list [of customer prospects] was not the cause of any harm to Plaintiffs. DocuSign did not gain any customers because of Mr. Levy’s list, nor conversely did Signix lose any customers or fail to acquire any customers.” Regarding damages, this order recited that “[n]ot only is there no evidence of proximate cause, but Plaintiffs also admit that they cannot show any cognizable injury. . . . Plaintiffs Eire not now and have never been profitable. . . . Indeed, Plaintiffs admit that there is no evidence that they lost any business because DocuSign had Levy’s list.”

A judgment of a court of competent jurisdiction shall be conclusive between the same pEirties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

Decided November 16, 2010

Reconsideration denied December 16, 2010.

Miller & Martin, Ryan A. Kurtz, for appellants.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Stephen W. Mooney, Margaret A. Fernandez, for appellees.

Therefore, the rulings made in the trial court’s grant of summary judgment to DocuSign, Inc., are conclusive as between plaintiffs and Levy and the arguments made here concerning the same theories of recovery against Levy are barred by res judicata.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       The claims alleged against Levy and DocuSign, Inc., were for breach of contract, tortious interference with business and contractual relations, conversion, misappropriation of trade secrets, violation of the Georgia Computer Systems Protection Act, and for attorney fees. All of the companies involved in the dispute were engaged in electronic encryption of signatures. Levy worked for Signix, Inc., which was alleged to be a subsidiary of ProNvest, as a salesman. He was terminated by Signix, Inc. and then began work for DocuSign, also as a salesman. After leaving Signix, Inc., Levy prepared a spreadsheet of potential customers from his memory, data sources, and some online social sites. It is this list of customers that plaintiffs alleged contained its proprietary information and was taken from its database.

       See Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981).

       Salesforce.com was the software program used by Signix, Inc., to track sales contacts.

       OCGA § 9-12-40.

        Laosebikan v. Lakemont Community Assn., 302 Ga. App. 220, 221 (1) (690 SE2d 505) (2010), citing Hooper v. Harris, 236 Ga. App. 651, 652 (1) (512 SE2d 312) (1999).