author: MILLER, Presiding Judge. McFADDEN, Presiding Judge,

text:
    A16A1521.
    A16A1522.
    FULLER et al. v. McCORMICK et al. FULLER v. McCORMICK et al.
    (798 SE2d 280)
   MILLER, Presiding Judge.

William McCormick was injured when a large rock fell from the bucket of the Bobcat he was operating and hit his knee after he deliberately parked the Bobcat on a sloped surface, overloaded the bucket with rocks, and then fully extended the Bobcat’s arm to dump the rocks. McCormick and his wife sued Cindy Fuller, Thomas Fuller, and Full Stride Farm, Inc. (“Full Stride Farm”) (collectively, “the Fullers”), on grounds of negligence, negligence per se, failure to train, failure to supervise, failure to maintain, vicarious liability, and loss of consortium. The Fullers filed separate motions for summary judgment, which the trial court denied. The trial court granted a certificate of immediate review, and this Court granted the Fullers’ applications for interlocutory review. After a thorough review of the record, we reverse the denial of the Fullers’ motions for summary judgment because McCormick assumed the risk of injury as a matter of law.

“On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.” (Citation and punctuation omitted.) Kouacs v. Cornerstone Nat. Ins. Co., 318 Ga. App. 99 (736 SE2d 105) (2012).

So viewed, the evidence shows that, from 1999 through 2013, McCormick was a full-time employee at Full Stride Farm, a small family enterprise that was owned and run by Cindy Fuller (“Cindy”). McCormick also worked for Thomas Fuller (“Thomas”) on a personal basis, running errands such as taking out the trash and mowing the lawn.

When McCormick first started his employment at Full Stride Farm in 1999, he was asked to use a Bobcat to complete various tasks on the farm. The Bobcat had a roof and side cages for protection, and the cockpit of the Bobcat contained several warning signs, including: “carry load low, avoid steep slopes and high speed turns, never carry more than 1700 pounds,” and “avoid overturn.” Although the Fullers never formerly trained McCormick regarding how to use the Bobcat, McCormick used this Bobcat on a regular basis without incident for the next thirteen years.

On September 8, 2012, the Fullers asked McCormick to use the Bobcat to move large rocks, dirt, and roots from a demolition site into the back of a dump truck. McCormick decided where to park the dump truck and how to load the rocks from the Bobcat into the truck. Specifically, McCormick decided to park the Bobcat on lower ground, below the dump truck, which then required him to fully extend the arm of the Bobcat ten to twelve feet off of the ground in order to load the rocks and other debris into the truck. McCormick overloaded the bucket with rocks sticking up approximately four inches above the edge of the bucket, even though he was aware that doing so could cause the rocks to fall out. As McCormick lifted the overloaded bucket, it struck the edge of the dump truck and one of the rocks tumbled out. The rock struck McCormick’s left knee, which was slightly protruding out from the front of the Bobcat. As a result of his injuries, McCormick required knee replacement surgery, and he has suffered chronic knee pain since the accident.

Case No. A16A1521

1. In Case No. A16A1521, Cindy Fuller and Full Stride Farm argue that the trial court erred in denying their motion for summary judgment because McCormick assumed the risk of injury as a matter of law. We agree.

“To recover for injuries [allegedly] caused by another’s negligence, a plaintiff must show four elements: a duty, a breach of that duty, causation and damages.” (Citation and punctuation omitted.) Webb v. Day, 273 Ga. App. 491, 494 (3) (615 SE2d 570) (2005). In his complaint, McCormick alleged that the Fullers were negligent for, among other reasons, failing to train him on the use of the Bobcat.

McCormick is correct insofar as it is well settled that an employer is obligated to train employees on the use of equipment, and it is undisputed that McCormick did not know how to use the Bobcat when he was hired, and the Fullers did not provide any training. See Moore v. Dublin Cotton Mills, 127 Ga. 609, 617 (56 SE 839) (1907). However, even if the Fullers breached their duty by failing to train McCormick, he is nonetheless barred from recovering in tort because he assumed the risk of injury as a matter of law. See Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996) (assumption of the risk bars recovery on a negligence claim).

(a) Under Georgia law, assumption of the risk provides a complete defense to liability and bars recovery where the “plaintiff himself is negligent in such a way that his own negligence is the sole proximate cause” of his injury. (Citation and punctuation omitted.) Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695, 696 (1) (409 SE2d 89) (1991). “Although assumption ofthe risk is ordinarily a jury question, in plain, palpable, and indisputable cases resolution of the issue by a jury is not required.” (Citation and punctuation omitted.) Fowler v. Alpharetta Family Skate Center, 268 Ga. App. 329, 331 (3) (601 SE2d 818) (2004); see also Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997) (summary judgment proper in plain and palpable cases).

When a motion for summary judgment is premised on the affirmative defense of assumption of the risk, the defendants bear the initial burden of proof to come forward with evidence sufficient to establish “that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.” (Citation omitted.) Vaughn, supra, 266 Ga. at 864 (1); see also Christian v. Eagles Landing Christian Academy, 303 Ga. App. 113 (1) (692 SE2d 745) (2010). In assessing whether defendants have met this burden, we apply a subjective standard “geared to the particular plaintiff and his situation, rather than that of a reasonable person of ordinary prudence.” (Citation and punctuation omitted.) Muldovan v. McEachern, 271 Ga. 805, 808 (2) (523 SE2d 566) (1999). Here, the record clearly shows that the Fullers have met their burden.

(i) McCormick’s actual knowledge of the open and obvious danger

“Knowledge of the risk is the watchword of assumption of the risk, and means both actual and subjective knowledge on the plaintiff’s part.” (Citations and punctuation omitted.) Muldovan, supra, 271 Ga. at 808 (2). Nevertheless, in some cases, a plaintiff’s assumption of the risk can be implied from facts showing that he was aware of the risk. Tennison v. Lowndes-Echols Assn. for Retarded Citizens, 209 Ga. App. 343, 344 (433 SE2d 344) (1993) (plaintiff assumed risk where he climbed on top of a pallet of lumber positioned on a forklift, the lumber shifted while he was standing on it, and he knew that the forklift carrying the load of lumber upon which he was standing could turn over and cause him to fall). This is because “[a] person cannot undertake to do what is obviously a dangerous thing and at the same time avoid the responsibility for the self-assumed risk.” First Pacific Mgmt. Corp. v. O’Brien, 184 Ga. App. 277, 281 (361 SE2d 261) (1987).

In this case, the danger arising from McCormick’s conduct was obvious. First, McCormick had actual knowledge of the open and obvious danger caused by fully extending the arm of the Bobcat overhead while the bucket was overloaded with heavy rocks. Indeed, he admitted as much in his testimony, when he stated that he knew “something could happen” if he “work[ed] the bucket that high.” Second, not only was the lack of front cage protection to guard against falling objects visible and obvious, but the Bobcat also contained warning signs that cautioned McCormick against the action he undertook. See Desai v. Silver Dollar City, 229 Ga. App. 160, 165 (3) (493 SE2d 540) (1997) (summary judgment warranted where plaintiff ignored warning signs until she was injured).

(ii) McCormick subjectively understood and appreciated the risks

McCormick admitted that he subjectively appreciated the risk of overloading the Bobcat’s bucket and fully extending the arm in this manner. After using this Bobcat for thirteen years without incident, on the day of the accident, McCormick deliberately chose to have the dump truck, which had sides well-above ten to twelve feet off of the ground, parked on top of a three to four foot slope. McCormick admittedly knew that he would be lifting large and heavy rocks and that he overloaded the bucket with two to four inches of rock visible above the rim.

Moreover, McCormick admitted that he was concerned for his safety when he extended the arm of the Bobcat bucket above the high wall of the dump truck. Specifically, McCormick admitted that he knew better than to load large mounds of dirt and rock that could stick up over the top of the bucket because he realized that rocks could fall out that way. And he stated that he was “nervous” using the Bobcat with the arm extended as high as it was under the circumstances because he feared “something could happen.”

When a person admits knowledge of the risk caused by his own conduct, even if the risk manifests itself differently than he expected, that person has assumed the risk of injury. See Kroger Co. v. Williams, 257 Ga. App. 833, 834-835 (572 SE2d 316) (2002) (summary judgment proper where the plaintiff was injured when a pallet of milk crates fell on him while he was assisting another employee unload the crates because the plaintiff knew that milk fell during the unloading process all the time and thus he had the requisite subjective knowledge).

(iii) McCormick voluntarily exposed himself to those risks

As noted, McCormick decided where to park the dump truck, even though he understood that this required him to fully extend the Bobcat’s arm. Additionally, McCormick admittedly ignored warning signs in the cab of the Bobcat instructing users to “carry load low, avoid steep slopes and high speed turns.” Moreover, in his deposition, McCormick admitted that there was no malfunction or problem with the Bobcat that caused the rock to fall out. Although McCormick argues that he was coerced into moving the rocks in this manner, the record reflects that he alone chose where to park the dump truck and how to use the Bobcat.

(b) The Fullers have thus come forth with evidence to show that McCormick assumed the risk of injury as a matter of law on the day of the accident. The burden then shifted to McCormick to “come forward with some evidence that shows a genuine, disputed issue of fact as to some element of the affirmative defense.” (Citation omitted.) Kane v. Landscape Structures, 309 Ga. App. 14, 16 (709 SE2d 876) (2011). McCormick failed to meet this burden of production because he pointed to nothing in the record to raise a genuine issue of fact with regard to his assumption of the risk.

In an affidavit submitted in response to the Fullers’ motions for summary judgment, McCormick stated that he had never used the Bobcat in this manner before, he did not know that he needed to use it differently, and he was unaware of the risk of rocks falling out. In his affidavit, McCormick feigned ignorance of the open and obvious danger. However, McCormick admitted in his deposition that he knew he was engaged in dangerous behavior and that he “had enough sense to know” that overloading a bucket of rocks up high would cause the rocks to fall on him. McCormick further admitted in his deposition that he knew “something could happen” if he used the Bobcat in the manner he did on the day of the accident. Nevertheless, he admitted that he loaded the bucket in such a way that large rocks were sticking up as much as four inches above the edge of the bucket and that he had to fully extend the Bobcat’s arm overhead to dump the contents of the bucket. Because McCormick’s affidavit directly contradicts his deposition testimony without offering any explanation for the contradiction, the trial court should have, but failed to, discount McCormick’s affidavit testimony under the Prophecy rule. See Hayward v. Kroger Co., 317 Ga. App. 795, 798-799 (3) (a) (733 SE2d 7) (2012).

Absent McCormick’s self-serving affidavit, McCormick has failed to point to any evidence to meet his burden to demonstrate a genuine issue of material fact with respect to his assumption of the risk. McCormick’s voluntary decision to lift the overloaded bucket of large rocks high up while on a slope, in the face of warning signs, even though he actually and subjectively knew a rock could fall out and hit him, is fatal to his claim. See Desai, supra, 229 Ga. App. at 165 (3).

We recognize that the majority of cases in this Court addressing assumption of the risk conclude that this issue is better left to the jury However, where, as here, the issue is “plain, palpable, and indisputable,” summary judgment is appropriate. (Punctuation omitted.) Fowler, supra, 268 Ga. App. at 331 (3). The Fullers have met their burden to show that McCormick knowingly and voluntarily assumed the risk of injury, and McCormick has failed to meet his burden to defeat the affirmative defense of assumption of the risk. Accordingly, the Fullers are entitled to summary judgment as a matter oflaw. See, e.g., Sones v. Real Estate Dev. Group, 270 Ga. App. 507, 508-509 (1) (606 SE2d 687) (2004) (affirming summary judgment based on assumption of the risk where workers were in a box/wooden platform being lifted by a forklift at night and they were injured when the forklift tilted and knocked them to the ground, and this Court found that there was an obvious risk that the platform could move, the plaintiff was aware that he was not tied off as a safety precaution, and this was the second time the plaintiff had used the work platform).

“It defies both logic and our law to permit a recovery under this evidence.” Desai, supra, 229 Ga. App. 165 (3). Accordingly, the trial court erred when it denied the Fullers’ motions for summary judgment on the ground of assumption of the risk, and McCormick is not entitled to recover on any of his tort claims.

2. McCormick’s wife’s loss of consortium claim is dependent on her husband’s right to recover. Sewell v. Dixie Region Sports Car Club of America, 215 Ga. App. 611, 613 (2) (451 SE2d 489) (1994). Having concluded that McCormick assumed the risk of his actions, he cannot recover, and, therefore, his wife’s loss of consortium claim fails as well. Id.

Case No. A16A1522

3. In light of our conclusion in Division 1 that McCormick assumed the risk of injury and that the Fullers were entitled to summary judgment, we need not address Thomas’s arguments as to causation.

Judgment reversed. Branch, Mercier, Reese, and Bethel, JJ., concur.

Ellington, P. J., Dillard, P. J., and McMillian, J., concur in judgment only. McFadden, P. J., dissents.

McFADDEN, Presiding Judge,

dissenting.

I respectfully dissent because this is not a case where the defense of assumption of the risk is susceptible of summary adjudication. And Thomas Fuller’s alternate arguments for summary judgment lack merit. So I would affirm the trial court’s denial of the defendants’ motions for summary judgment.

1. Assumption of the risk.

An assumption of risk defense

is not ordinarily susceptible of summary adjudication, and summary judgment is appropriate only where the evidence is plain, palpable, and indisputable. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.

Bills v. Lowery, 286 Ga. App. 301, 304 (3) (648 SE2d 779) (2007) (citations and punctuation omitted). The defendant must show “both actual and subjective knowledge on the plaintiff’s part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury” Kroger Co. v. Williams, 257 Ga. App. 833, 835 (572 SE2d 316) (2002).

The majority would hold that McCormick had actual and subjective knowledge of the particular risk that caused his injury — rocks falling from the bucket of the Bobcat — because the danger was obvious and because McCormick overloaded the bucket with rocks, even though he was aware that doing so could cause rocks to fall out. In fact, McCormick specifically testified that, although he was aware of the risk of the Bobcat falling over, he did not know of the risk of the harm that injured him. And he specifically testified that he did not overload the bucket.

(a) Specific knowledge.

On the issue of McCormick’s knowledge, he submitted his affidavit in which he explicitly testified that he did not know that “using the Bobcat to clear large rocks and rubble and dumping it into a dump truck with the bucket up high was different than using it how [he] had used it before,” that “using the Bobcat on a hill or that dumping from a different, level than the dump truck needed to be done any differently than [he] had done before,” or that “there was a risk that the rocks could fall out of the bucket if the Bobcat was operated in the manner it was operated on the date of the incident.” He added that he “had never had any items fall out of the bucket when [he] used the Bobcat before.” This is direct evidence that McCormick lacked actual knowledge of the danger that resulted in his injury and did not understand or appreciate the risks associated with such danger.

Moreover, although McCormick did testify that he was “worried that something could happen,” as the majority observes, he consistently explained that the danger he was worried about was the Bobcat tipping over:

Q. You had the bucket way up high?
A. Yeah. To get over that dump truck. I hope this thing don’t turn over.
Q. Okay But you felt nervous because you felt that it was dangerous?
A. Something could happen, yes, sir.
Q. Did you have any thoughts about what might happen?
A. The side — The side might tip over or something. Other than that, no.
Q. So you knew, you were afraid something was going to happen because it was unstable, right?
A. I thought something was going to happen because it was extended out high.
Q. You were afraid something was going to happen because it was extended out high?
A. But what I thought would happen, I thought it might tilt over or something. I knew it couldn’t do that.

The majority would disregard McCormick’s affidavit testimony on the ground that the trial court should have discounted it under Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986). But McCormick’s testimony is not contradictory; in his deposition McCormick testified that he was concerned that the Bobcat would tilt over; in his affidavit he testified that he did not know of the risk of rocks falling out of the Bobcat’s bucket. Testimony “is contradictory if one part of the testimony asserts or expresses the opposite of another part of the testimony” Prophecy Corp., 256 Ga. at 30 (2). Here, “[t]here is no relevant contradiction to be resolved, and the Prophecy rule has no bearing on the question of” whether McCormick knew of the risk of rocks falling from the bucket. Pierre v. St. Benedict’s Episcopal Day School, 324 Ga. App. 283, 289 (3) (750 SE2d 370) (2013). So there is no basis for disregarding the only direct evidence of McCormick’s knowledge of the risk that injured him. “Consequently, summary judgment for [the defendants is] not warranted on this basis.” Bills, 286 Ga. App. at 304 (3).

The majority cites Kroger, 257 Ga. App. at 835, for the proposition that when a person admits knowledge of the risk caused by his own conduct, even if the risk manifests itself differently than he expected, that person has assumed the risk of injury But in Kroger, the plaintiff admitted knowledge of the specific risk that caused his injury. There, the plaintiff, a delivery driver, was injured when, while assisting a store employee unload a pallet of milk crates from his truck, the crates fell on the plaintiff. Id. at 834. The plaintiff “acknowledged he was aware that milk fell during the unloading process ‘all the time,’ ” and that one cause was “ ‘like the case with [him] when the crate gets caught on the dock plate.’ ” Id. He had even complained to his supervisor about the store’s employees “not knowing how to operate the pallet jack[ ]” that caused the crates to fall on him. Id. at 835. And in Kroger, we repeated our long-standing requirement that for assumption of the risk to apply,

[t]he knowledge that a plaintiff... must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff’s comprehension of general, non-specific risks that might be associated with such conditions or activities.

Id. (citation omitted; emphasis supplied). See also Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996) (same); Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 479 (3) (491 SE2d 909) (1997) (same).

(b) Overloading of the bucket.

Contrary to the majority, McCormick testified that he did not overload the bucket with rocks, because he wanted to avoid the risk of rocks falling:

Q. How high was the load of rock and such that were in the bucket when this rock came off and hit you?
A. I would say, it wasn’t level, with the rock sticking up maybe four inches tall or something.
Q. So when you loaded it up,. .. you had chosen to get a load of rock that was sticking up maybe four inches over the level of the bucket?
A. No. If it was level, the end of it might have been sticking up like that, but I didn’t have a big mound of dirt or nothing over the top of the bucket because I had enough sense to know that when I dumped that it would’ve fallen on me.
Q. That’s what I’m trying to find out. Was the load that you had level with the top of the bucket or was a rock or two sticking up a few inches above the bucket?
A. A rock or two was sticking up a few inches above it honestly, but the whole load wasn’t sticking up. You know, it wasn’t a mound over it.

(Emphasis supplied.) As the majority writes and this testimony demonstrates, McCormick admitted that he subjectively appreciated the risk of overloading the Bobcat’s bucket, but the majority points to no record evidence that McCormick did, in fact, overload the bucket. There is no basis for concluding that McCormick overloaded the bucket, given his undisputed testimony that he “didn’t have a big mound of dirt or nothing over the top of the bucket” and that a “rock or two was sticking up a few inches above [the bucket] honestly, but the whole load wasn’t sticking up.”

The evidence of McCormick’s assumption of the risk is not plain, palpable, and indisputable. So the trial court did not err by denying the defendants’ motion for summary judgment on this ground.

2. Thomas Fuller’s other arguments.

Thomas Fuller argues that he did not breach a duty to McCormick; that McCormick breached his own affirmative duty to ensure his own safety; and that no act of Thomas Fuller’s caused the accident. None of these arguments entitles Thomas Fuller to summary judgment.

(a) Duty of care.

Thomas Fuller argues that he owed no duty of care to McCormick because on the day of the accident, McCormick’s job was to clear debris from a demolition site, and the duty of ordinary care does not apply to construction or demolition sites. Under OCGA § 34-7-20, an employer

is bound to exercise ordinary care ... in furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery or dangers incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto.

OCGA § 34-7-20.

Thomas Fuller cites Elsberry v. Ivey, 209 Ga. App. 620 (434 SE2d 158) (1993), a premises liability case, for the proposition that the duties of OCGA § 34-7-20 do not apply to employees on construction or demolition sites. In Elsberry, the plaintiff was injured while engaged in the demolition of a roof, which, as the work progressed, created danger of which the plaintiff knew or which he should have anticipated. We held that because the plaintiff was hired for the express purpose of assisting in demolition, and the unsafe conditions from which his injury resulted “arose from or were incidental to the work undertaken by him,” the general rule that an owner or occupier of land has a duty to keep his premises safe for workers did not apply Id. at 621 (2) (b) (citation and punctuation omitted). And we noted, “[t]he servant could not have engaged in the work without knowing and, seeing the identical condition which, as grounds of negligence, it is alleged that the master allowed to exist.” Id. at 622 (2) (c) (citation and punctuation omitted; emphasis supplied).

Here, McCormick was engaged in cleaning up after demolition, not assisting in demolition; his clean-up work was not making the premises less safe as the work progressed, unlike the demolition work of the plaintiff in Elsberry, and he testified that he did not understand the risk. The other case cited by Thomas Fuller, Howell v. Farmers Peanut Mkt. of Sowega, 212 Ga. App. 610 (442 SE2d 904) (1994), also was a premises liability case in which the plaintiff was injured while assisting in construction. Both cases are distinguishable and neither supports Thomas Fuller’s argument that he owed McCormick no duty.

(b) Duty to ensure his own safety.

Thomas Fuller argues that he is entitled to summary judgment because McCormick failed “to observe and protect himself from visible and manifest defects which exist[ed] in his work environment.” This is simply restating the assertion that McCormick assumed the risk of injury. See Carter v. Country Club of Roswell, 307 Ga. App. 342, 346 (705 SE2d 170) (2010). And as detailed above, whether McCormick assumed the risk of injury is a question for jury resolution.

Decided March 10, 2017

Lori J. Christman; Leuenson & Associates, Louis Levenson, for appellants (case no. A16A1521).

Downey & Cleveland, G. Lee Welborn, Amanda S. Newquist, for appellant (case no. A16A1522).

Wagner Hughes, Gretchen H. Wagner, Katherine G. Hughes, for appellees.

(c) Causation.

Finally, Thomas Fuller argues that he is entitled to summary judgment because McCormick has failed to point to evidence of a causal connection between Thomas Fuller’s conduct and McCormick’s injury But McCormick points to Cindy Fuller’s deposition in which she testified that the incident occurred because McCormick was using the Bobcat negligently. That testimony, he argues, allows the conclusion that if the defendants had trained him properly, he would not have used the Bobcat negligently, and he would not have been injured. He also points to evidence that the defendants could have provided a screen to prevent objects from entering the cockpit, thereby preventing his injury So Thomas Fuller has not shown that he is entitled to summary judgment for lack of evidence of causation. See Cowart v. Widener, 287 Ga. 622, 627 (2) (b) (697 SE2d 779) (2010) (“In the tort context, proximate causation includes all of the natural and probable consequences of the tortfeasor’s negligence[.]”).

As the defendants have not shown that they are entitled to summary judgment because McCormick assumed the risk of injury and because none of Thomas Fuller’s alternate arguments entitle him to summary judgment, I would affirm the trial court.

       Although McCormick stated in his deposition that he had a pending workers’ compensation claim, there is no evidence of this claim in the record.

       McCormick never requested training and did not ask for assistance because he assumed that if Cindy, a female, could operate the Bobcat, he could as well.


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A1572.
    MERCADO v. SWOOPE.
    (798 SE2d 291)
   McMlLLIAN, Judge.

Following his arrest for scalping tickets, Bobby Rydell Swoope filed suit against Atlanta Police Officer Nicholas Mercado, asserting, among other counts, a claim for false imprisonment. After a trial, the jury returned a verdict in favor of Swoope. Mercado now appeals the trial court’s denial of his motion for judgment notwithstanding the verdict (“j.n.o.v.”), enumerating as error the trial court’s failure to find that he is entitled to official immunity. For the reasons that follow, we agree and reverse the judgment in favor of Swoope.

In reviewing the denial of a motion for j.n.o.v., this Court “must affirm if there is any evidence to support the jury’s verdict, and in making this determination, we must construe the evidence in the light most favorable to the prevailing party” (Citations and punctuation omitted.) Wright v. Apt. Investment and Mgmt. Co., 315 Ga. App. 587, 588 (726 SE2d 779) (2012). “The determinative question is not whether the verdict and the judgment of the trial were merely authorized, but is whether a contrary judgment was demanded.” (Citation and punctuation omitted.) Id.

So viewed, the evidence shows that on the morning of January 20, 2013, Swoope purchased a ticket to the NFC Conference Championship Game from a friend for $200. Swoope arrived at the Georgia Dome some time later that day and sat at the railing on the sidewalk leading up to the entrance before the game began. According to Swoope, as he was sitting on the rails, a man and a woman who appeared to be a couple, approached him and said they needed two tickets to the game. He told the couple he only had one ticket and that he planned to use it himself. The couple then spoke to a gentleman standing nearby who, although unknown to Swoope, was later identified as Gerald Jones. Swoope testified that the next thing he knew, an officer came up and placed him under arrest for scalping. He and Jones were transported to a mini precinct and issued a citation. Swoope later appeared in court to address the citation but was not convicted of the charge.

In September 2013, Swoope filed a civil suit against the City of Atlanta (the “City”) and Mercado, both individually and in his official capacity, asserting claims of false arrest; false imprisonment; malicious prosecution; negligent hiring, training, and supervision; negligence; and invasion of privacy. Following discovery, the defendants moved for summary judgment on the grounds that Swoope’s claims against the City are barred by the doctrine of sovereign immunity and that Mercado is entitled to official immunity The trial court granted the motion with regard to all claims against the City and against Mercado in his official capacity. However, the trial court found that, although the warrantless arrest of Swoope was a discretionary act, an issue of fact remained regarding whether Mercado acted with actual malice, thus precluding summary judgment on the claims against Mercado individually. Thereafter, the case proceeded to trial.

Mercado’s testimony at trial disagreed sharply with Swoope’s version of events. Mercado testified that he and Investigator Katie Reister, his partner that day, were working an undercover scalping detail along with a “takedown team.” As part of that detail, they were instructed to look for people scalping tickets and to identify anyone selling fake tickets. When Mercado and Reister arrived, they saw Jones holding tickets. Mercado and Jones made eye contact and walked toward each other, and Jones said that he wanted $360 for his tickets. According to Mercado, Swoope then interjected himself and said he had a ticket. Mercado asked him how much he wanted, and Swoope told him to make him an offer. Mercado told him, “It’s your ticket. It’s your price.” Swoope responded that he wanted $250, and Mercado agreed after seeing that he had an actual paper ticket. Mercado then gave his takedown signal and nearby officers came over and arrested Jones and Swoope. Mercado and Reister quickly moved on to find other scalpers and had no further contact with Swoope that day Reister testified that while Jones was their initial focus, she and Mercado believed that Jones and Swoope were working together. At trial, Swoope continued to deny that he approached Mercado, but admitted on cross-examination that he told Mercado “if I was selling tickets, he would have to make me an offer,” but claimed that he was “probably laughing and joking.”

At the close of the plaintiff’s evidence, Mercado moved for a directed verdict. Although the trial court questioned whether there had been “any evidence of a deliberate intent to do wrong,” it ultimately denied the motion, finding “there may be slight evidence” of malice. At the close of all evidence, Mercado renewed his motion for directed verdict, which the trial court again denied. The jury returned a verdict in favor of Swoope and awarded him $19,240. Mercado then moved for a j.n.o.v. After the trial court denied the j.n.o.v., this appeal followed.

In his sole enumeration of error, Mercado asserts that the trial court erred in finding that he was not entitled to official immunity “The doctrine of official immunity, also known as qualified immunity, offers public officers and employees limited protection from suit in their personal capacity.” (Citation omitted.) Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001).

Because the rationale for qualified immunity is to protect the independent judgment of public employees without the potential threat of liability, ... a court must consider as a threshold issue whether the officer is entitled to qualified immunity from personal liability in a lawsuit for damages.

Id. at 122.

The 1991 Amendment to the Georgia Constitution provides that public employees

may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.

Ga. Const. of 1983, Art. I, Sec. II, Par. IX (d). The decision to make a warrantless arrest, such as the one at issue here, is considered a discretionary act within the scope of the officer’s official functions. See Taylor v. Waldo, 309 Ga. App. 108, 110 (1) (709 SE2d 278) (2011). We must therefore determine whether there was any evidence to support the jury’s verdict that Mercado acted with actual malice or actual intent to injure Swoope.

Our Supreme Court has held that, in the context of official immunity, “ ‘actual malice’ requires a deliberate intention to do wrong.” Merrow v. Hawkins, 266 Ga. 390, 391 (467 SE2d 336) (1996) (actual malice is more than implied malice or reckless disregard for the rights of others). “A deliberate intention to do wrong such as to constitute the actual malice necessary to overcome official immunity must be the intent to cause the harm suffered by the plaintiff[ ] (Citation and punctuation omitted.) Selvy v. Morrison, 292 Ga. App. 702, 704 (665 SE2d 401) (2008). And an actual intent to cause injury has been defined as “an actual intent to cause harm to the plaintiff, not merely an intent to do the act purportedly resulting in the claimed injury. This definition of intent contains aspects of malice, perhaps a wicked or evil motive.” (Citation and punctuation omitted.) Id. at 705 (finding no jury question of malice, despite evidence that officer initially left plaintiff’s home then yelled “F[***] this shit, arrest that b[****] too!”, yelled for her to open the door or he would kick it in, slammed her face into the wall, and kicked her legs out from under her, causing her son to get injured in the process before charging her with disorderly conduct).

However, the “public officer or employee’s subjective feeling or mental state is irrelevant unless it prompts him or her to intend to do a legally unjustifiable action.” (Citation and punctuation omitted.) Delong v. Domenici, 271 Ga. App. 757, 759 (1) (610 SE2d 695) (2005), overruled on other grounds, Zilke v. State, 299 Ga. 232, 235 (787 SE2d 745) (2016). “All that is required for a lawful warrantless arrest is probable cause. To determine whether probable cause existed, we look at the facts within the officer’s knowledge at the moment of arrest.” Id. Thus, even if it is later determined that the plaintiff had not committed the crime for which he was arrested, the legitimacy of the officer’s actions would not be negated if at the moment of arrest he reasonably believed the plaintiff had committed the crime. Id.

Here, construing the evidence to support the jury’s verdict, Swoope admitted that he was standing near Jones, who he does not dispute was scalping tickets, and that Swoope told Mercado to “make him an offer” for the ticket, albeit allegedly as a joke. Under these circumstances, Mercado’s belief that Swoope was selling his ticket too was reasonable, and the arrest was therefore legally justifiable. See Delong, 271 Ga. App. at 760. “Even when an arresting officer operates on a mistaken belief that an arrest is appropriate, official immunity still applies.” (Citation and punctuation omitted.) Selvy, 292 Ga. App. at 706, n.17. “Our task is not to decide, with the benefit of hindsight, what the officers should have done. We are concerned only with whether their behavior showed a deliberate intention to commit a wrongful act.” (Citation and punctuation omitted.) Id. at 707.

Applying the foregoing, we find that the evidence demands the conclusion that [Mercado] acted without actual malice. There is no evidence that [he] was motivated by a personal animus toward [Swoope]. Nor is [he] accused of manufacturing evidence or knowingly presenting perjured testimony.

Marshall v. Browning, 310 Ga. App. 64, 68 (712 SE2d 71) (2011). Cf. Gardner v. Rogers, 224 Ga. App. 165 (480 SE2d 217) (1996); City of Atlanta v. Shavers, 326 Ga. App. 95 (756 SE2d 204) (2014), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016); Lagroon v. Lawson, 328 Ga. App. 614 (759 SE2d 878) (2014) (physical precedent only). Thus, even after giving Swoope every benefit of the doubt, we cannot conclude that he presented evidence that could authorize a finding of actual malice sufficient to pierce the shield of official immunity. Accordingly, the trial court erred in denying Mercado’s motion for j.n.o.v.

Decided March 10, 2017.

Cathy Hampton, Laura S. Burton, Tamara N. Baines, for appellant.

Stewart, Seay & Felton, Quinton S. Seay, Eugene Felton, Jr., for appellee.

Judgment reversed.

Miller, R J., and McFadden, P. J., concur.

       At trial and on appeal, Swoope concedes that he was standing near Jones.

       There is some indication in the record that the charge was dismissed because Swoope was mistakenly cited under the wrong city ordinance.

       For a further explanation of the separate doctrines of sovereign immunity and official immunity, see Tattnall County v. Armstrong, 333 Ga. App. 46, 48-50 (1) (775 SE2d 573) (2015), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016).

       At that point, Swoope withdrew his claims for malicious prosecution and false arrest, leaving only the false imprisonment claim remaining.

       In that case, a police officer completed an interview with a suspect at her house and told her that he was not going to arrest her at that time. But when the suspect tried to shut her door, the officer pushed his way back in, used physical force to take her into custody and then took her to another location where he discussed with a colleague how to devise grounds on which to arrest her. We found that evidence created a jury question concerning whether the officer had actual malice against the plaintiff. Gardner, 224 Ga. App. at 169 (4).

       There, following a mistaken report that the plaintiff had stolen abandoned money orders from a gas station, police arrived and viewed the videotape from the store’s security camera, which showed that plaintiff had not taken the items. Shavers, 326 Ga. App. at 96. Despite learning that the plaintiff had not taken the items, the officer arrested him and took him to the police station where he was held for several hours. Id. The officer taunted him, telling him he was going “to make the charges stick” no matter what. The officer charged him with felony theft by taking and transported him to jail; the charge was ultimately dismissed. Id. This evidence was sufficient to create a question of actual malice for the jury. Id. at 98-99 (2) (b).

       In Lagroon, there was evidence that officers used threats to pressure teenaged eyewitnesses into giving false statements against the plaintiffs. 328 Ga. App. at 619 (2) (a). In addition, an officer detained one of the plaintiffs overnight before interviewing her, and then he did not question her about the charges, but instead questioned her about her estranged husband, whom he knew. Id. at 617 (1). The officer taunted her, telling her he had her husband’s cell phone number and would call him to come to the sheriff’s office and that he would be personally testifying against her in her divorce action. Id. We found a jury could infer from this evidence that the officers acted with actual malice. Id. at 619 (2).


author: DILLARD, Presiding Judge. BETHEL, Judge,

text:
    A16A1650.
    DAVIS v. THE STATE.
    (798 SE2d 474)
   DILLARD, Presiding Judge.

This appeal concerns the breadth of the “power of executive clemency” exercised by the Georgia Board of Pardons and Paroles (the “Board”), especially the power to grant pardons and remove disabilities imposed by law. Specifically, we are called upon to determine whether the Board’s “unconditional” pardon of Barry Davis’s aggravated sodomy conviction obviates his duty to register as a convicted sex offender. Because the separation-of-powers doctrine requires us to adhere to the decision of the Board to issue Davis a pardon, and the plain meaning of the sweeping language used by the Board in that pardon removes the duty of Davis to register as a sex offender, we are constrained to reverse the trial court’s denial of Davis’s motion for a general demurrer.

On August 21, 1995, Davis was convicted of the aggravated sodomy of his minor (six-year-old) biological daughter after entering a non-negotiated guilty plea to that charge in the Superior Court of Chatham County, which resulted in a sentence of ten years with two to serve in confinement. Approximately one year after Davis’s conviction, OCGA § 42-1-12 was enacted, which required him to register as a sex offender. Following his release from prison, Davis served the remainder of his sentence on probation until it terminated on July 15, 2005.

At some point thereafter, Davis applied to the Board for a pardon, and on February 13, 2013, the Board granted his application. Specifically, the pardon provided:

Whereas, having investigated the facts material to the pardon application, which investigation has established to the satisfaction of the Board that [Davis] is a law-abiding citizen and is fully rehabilitated; THEREFORE, pursuant to Article IV, Section II, Paragraph II (a), of the Constitution of the State of Georgia, the Board, without implying innocence, hereby unconditionally pardons said individual, and it is hereby ORDERED that all disabilities under Georgia law resulting from the above stated conviction and sentence . . . are hereby removed; and ORDERED FURTHER that all civil and political rights, except the right to receive, possess, or transport in commerce a firearm ... are hereby restored.

Approximately one month after receiving the pardon, Davis moved to North Carolina, but he did not provide notice to the Chatham County Sheriff’s Office that he was doing so. When the sheriff’s office informed Davis of this failure, Davis asserted that his pardon obviated the previous requirement for him to register as a sex offender. Nevertheless, the sheriff’s office obtained a warrant for Davis’s arrest, and on February 26, 2014, the State charged Davis, via indictment, with failing to register as a sex offender as required by OCGA § 42-1-12.

Subsequently, Davis filed a motion for a general demurrer, arguing that the indictment failed to charge an offense under Georgia law because, as he asserted previously, the requirement to register as a sex offender constituted a legal disability, which the Board’s pardon had removed. Shortly thereafter, the State filed a response, and a few months later, the trial court held a hearing on Davis’s motion, which concluded with the court taking the matter under advisement. Then, on January 14, 2016, the trial court denied Davis’s motion for a general demurrer, specifically finding that the requirement that Davis register as a sex offender was not a legal disability and, therefore, was not removed by the pardon. Davis then filed an application for interlocutory review, which we granted. This appeal follows.

At the outset, we note that an accused may challenge the sufficiency of an indictment by filing a general or special demurrer. Specifically, a general demurrer “challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.” An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury.” However, a demurrer to an indictment “does not reach matters not appearing on its face.” Indeed, a demurrer may “properly attack only defects which appear on the face of the indictment and a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer.”

In this matter, the indictment makes no reference to Davis’s pardon. And in fact, Davis introduced the pardon as an exhibit during the hearing on his demurrer. Thus, Davis arguably challenged the indictment via a speaking demurrer. Nevertheless, the State did not object to the introduction of Davis’s pardon during the hearing and likewise did not object generally to the method by which Davis challenged the indictment. Consequently, we find that the parties consented to the trial court’s determination of whether Davis’s pardon rendered insufficient the facts supporting the charge in the indictment, notwithstanding the general prohibition against speaking demurrers in criminal cases. Indeed, essentially, Davis’s challenge to the indictment could more accurately be characterized as a plea in bar, “which goes to bar the [Sjtate’s action; that is to defeat it absolutely and entirely.” Regardless, as is the case with a trial court’s ruling on a general or special demurrer, on appeal, we review the trial court’s application of the law to the undisputed facts in a plea in bar de novo. With these guiding principles in mind, we will now address Davis’s claim of error.

Davis contends that the trial court erred in denying his motion for a general demurrer, arguing that the requirement to register as a sex offender constitutes a legal disability, which the Board’s pardon of him removed, and thus, he committed no offense under Georgia law. We agree.

As noted supra, the State charged Davis with failure to register as a sex offender in violation of OCGA § 42-1-12, specifically alleging that, having been convicted of aggravated sodomy, Davis was required to update the Sheriff of Chatham County regarding any change of residence within 72 hours prior to such change but that Davis moved from his Savannah residence without doing so. And indeed, OCGA § 42-1-12 (f) (5), in relevant part, provides that registered sex offenders shall

[ujpdate the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information. ... If the information is the sexual offender’s new address, the sexual offender shall give the information regarding the sexual offender’s new address to the sheriff of the county in which the sexual offender last registered within 72 hours prior to any change of address [.]

Here, Davis does not dispute that he moved without informing the sheriff but, rather, argues that the pardon he received from the Board obviated the previous requirement to register as a sex offender. Accordingly, we shift our focus to the Board’s powers and the language of the pardon that it chose to grant Davis.

The Constitution of the State of Georgia provides that “[t]here shall be a State Board of Pardons and Paroles which shall consist of five members appointed by the Governor, subject to confirmation by the Senate.” And our Constitution further provides that the Board “shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.”

Recognizing the importance of separation of powers and the Board’s independence in order to effectively wield its clemency power, OCGA § 42-9-1 provides:

[I] t is declared to be the policy of the General Assembly that the duties, powers, and functions of the State Board of Pardons and Paroles are executive in character and that, in the performance of its duties under this chapter, no other body is authorized to usurp or substitute its functions for the functions imposed by this chapter upon the board.

And indeed, recognizing that the Board’s independence similarly prohibited interference from the courts, we have held that

[a]ny attempt by a court to impose its will over the Executive Branch by attempting to impose as a part of a criminal sentence conditions operating as a prerequisite of or becoming automatically effective in the event of a subsequent parole of defendant by the State Board of Pardons and Paroles would be a nullity and constitute an exercise of power granted exclusively to the Executive Branch.

Given this constitutional mandate, our review in this matter does not—and cannot—concern the propriety of the pardon the Board granted Davis but rather only the scope of that pardon.

The relevant regulation defines a pardon as “a declaration of record that a person is relieved from the legal consequences of a particular conviction,” which “restores civil and political rights and removes all legal disabilities resulting from the conviction.” And here, the pardon that the Board granted Davis—after “having investigated the facts material to the pardon application”—declares that he has “established to the satisfaction of the Board” that he is “a law-abiding citizen and is fully rehabilitated.” The pardon then, “without implying innocence” of Davis’s conviction for aggravated sodomy, “unconditionally fully pardons” him of that conviction, and orders that “all disabilities under Georgia law resulting from the above stated conviction and sentence ... are hereby removed; and... all civil and political rights, except the right to receive, possess, or transport in commerce a firearm . . . are hereby restored.” Nevertheless, in denying Davis’s motion for a general demurrer, the trial court found that the requirement that Davis register as a sex offender was merely regulatory and did not constitute a disability under the law that could be removed by the pardon. But although the trial court is correct that “sexual offender registry requirements such as those contained in OCGA § 42-1-12 are regulatory, and not punitive, in nature[,]” that does not end our inquiry unless one assumes that such regulatory requirements cannot also constitute legal disabilities. We can make no such assumption here.

The term disability is defined, inter alia, as an “incapacity in the eye of the law, or created by law; a restriction framed to prevent any person or class of persons from sharing in duties or privileges which would otherwise be open to them; legal disqualification.” And in contrast to regulations such as requiring tavern owners to obtain operating licenses or even weekend anglers to obtain fishing licenses, “registration as a sex offender is intimately related to the criminal process in that it is an automatic result following certain criminal convictions.” Under OCGA § 42-1-12 (e), “[registration shall be required by any individual who is convicted of certain designated criminal offenses, and we have emphasized that Georgia law makes registration mandatory for specified categories of convicted criminals.” Thus, unlike the majority of regulations, “our law has enmeshed criminal convictions and sex offender registration such that it is most difficult to divorce the requirement of registration from the underlying criminal conviction.”

Indeed, comparing registration as a sex offender to deportation, this Court has held that it “is a drastic measure (albeit a totally understandable one) with severe ramifications for a convicted criminal.” Aperson who falls within the ambit of the sex-offender registry is “subject to lifetime registration and to the public dissemination of his name and other information identifying him as a registered sex offender.” A registrant must also provide—to the sheriff of the county in which the registrant resides—a significant amount of personal information, including social-security number, fingerprints, address, place of employment, address of employer, and vehicle make, model, and license tag number, as well as updates to that information within 72 hours of any change. And the failure of a registrant to “comply with the requirements of the statute constitutes a felony offense.” Given that the registration statute requires one to provide law enforcement with significant details as to where one lives, where one works, and where one travels, it strains credulity to characterize compulsory registration as a sex offender as merely regulatory but not as an “incapacity” in the eyes of the law. Indeed, the ability of an American citizen to live freely without reporting to the government his or her every movement is a defining characteristic of our constitutional republic. In this case, the question before us is not whether Davis is deserving of such freedom (that has already been answered by the Board), but only whether the requirement that Davis register as a sex offender constitutes a legal disability that the Board’s pardon obviated, and we are constrained to conclude that it is a disability and that the trial court erred in holding otherwise.

In addition to the erroneous reasoning posited by the trial court to support its denial of Davis’s motion for a general demurrer, i.e., that the registration requirement does not constitute a legal disability, the State appears to also contend that the Board’s pardon did not absolve Davis of the responsibility to register as a sex offender because it did not explicitly state that the requirement was being removed. But this contention lacks merit unless we construe the Board’s use of the phrase “all disabilities under Georgia law” as meaningless. We are not at liberty to do so here. Furthermore, given that the Board explicitly stated in its pardon that it was not restoring Davis’s “right to receive, possess, or transport in commerce a firearm,” if the Board had wished to except the sex-offender registration requirement from the legal disabilities it was removing, it certainly knew how to do so. The State also fails to appreciate that even a “conditional pardon” is to be “construed most favorably to the grantee.”

Additionally, the State’s assertion that State Board of Pardons and Paroles Rule 475-3-. 10 limits the definition of disability to include only restrictions on the rights to vote, hold public office, and serve on a jury, is without merit. Rule 475-3-. 10 (6), entitled “Removal of Disabilities,” merely notes that, inter alia, “[ujnder Georgia Law a person convicted of a felony involving moral turpitude loses his civil and political rights, including the right to vote, the right to hold public office, and the right to serve on a jury . . . .” Suffice it to say, our Supreme Court has previously noted that such regulatory text hardly supports the State’s sweeping claim that the meaning of “disability,” as used by the Board in issuing its pardons, is limited solely to these three specific disabilities.

Finally, the State claims that language from the Board’s website and the Georgia Innocence Project’s website should be considered by this Court to assist us in determining the meaning of the language contained in the pardon issued by the Board to Davis. We decline to do so. Here, our concern is with the actual text used in Davis’s pardon, not unattributable statements or pronouncements contained on one or more websites (even if one of those websites does belong to the Board). If legislative history is “the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one’s friends,” then using unattributable language on a website to inform the meaning of a statute, regulation, or pardon is the equivalent of leaving the cocktail party altogether, driving past establishments not to your liking, and going straight to the pub “where everybody knows your name” and they always tell you what you want to hear. And if the former is cherry picking, then the latter is an endless orchard full of interpretive possibilities.

For all the foregoing reasons, we are constrained to reverse the trial court’s denial of Davis’s motion for a general demurrer.

That said, before concluding, we take this opportunity to express our sympathy with many of the concerns raised by the State and DAAG in this proceeding. Like the State and DAAG, this Court is deeply troubled by the fact that neither the victim nor the District Attorney’s Office were ever notified that the Board was considering a pardon of Davis’s aggravated sodomy conviction. Indeed, while the Board resisted the State’s attempts at every turn to unseal Davis’s pardon file, one of its members did agree to speak with the District Attorney’s Office about the pardon process in general. And in doing so, this board member indicated that (1) the Board has no policy of contacting the District Attorney’s Office from the convicting circuit or the victim before granting a pardon, (2) no real criteria exists for granting a pardon (“It’s very subjective”), and (3) 99% of all pardon requests are granted. Suffice it to say, these averments, if true, are shocking—especially the assertion that 99% of all pardon requests are granted. To be sure, these revelations about the Board’s pardon process have no bearing on this appeal. As previously noted, the separation-of-powers doctrine does not permit this Court to overturn or in any way disturb the Board’s pardon of Davis. We are bound by the Board’s exercise of that exclusive executive power. Nevertheless, the General Assembly may very well wish to investigate the manner in which the Board is currently exercising its pardon power and then take any remedial measures that it deems necessary. And while perhaps some or even all of the Board’s members genuinely believed that their pardon of Davis did not relieve him of his duty to continue his registration as a sex offender, this Court is not at liberty to disregard the plain meaning of the words used by the Board in issuing that pardon or the applicable law detailed supra. Instead, we are duty bound to abide by the plain language used by the Board in its pardon of Davis, not the unexpressed intentions of one or more board members.

Decided March 10, 2017

Robert L. Persse, Amy L. Ihrig, for appellant.

Judgment reversed.

Reese, J., concurs. Bethel, J., concurs fully and specially.

BETHEL, Judge,

concurring fully and specially.

“If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” With a new appreciation for the sentiment expressed above, I concur and join fully in Presiding Judge Dillard’s opinion.

Meg E. Heap, District Attorney, Greg M. McConnell, Lyndsey H. Rudder, Assistant District Attorneys, for appellee.

District Attorneys’ Association of Georgia, Scott L. Ballard, District Attorney, Robert W. Smith, Jr.; Georgia Association of Criminal Defense Lawyers, Brandon A. Bullard, James C. Bonner, Jr., Elizabeth A. Brandenburg, Robert G. Rubin, amici curiae.

        See Ga. Const. Art. IV, § II, ¶ II (a) (“Except as otherwise provided in this Paragraph, the State Board of Pardons and Paroles shall be vested with the power of executive clemency, including the powers to grant reprieves, pardons, and paroles; to commute penalties; to remove disabilities imposed by law; and to remit any part of a sentence for any offense against the state after conviction.”).

        See former OCGA § 42-1-12 (b) (1) (A) (ii); Ga. L. 1996, p. 1520, § 1; see also Frazier v. State, 284 Ga. 638, 638 (668 SE2d 646) (2008) (noting that sex-offender-registration law first became effective on July 1,1996, and, in pertinent part, requires registration by any individual who “ *[h]as previously been convicted of a criminal offense against a minor . . . and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996_’ ”).

       (Punctuation omitted.)

       As the State notes in its brief, a separate issue was considered by the trial court at this hearing: whether Davis’s file with the Board shouldbe unsealed. The State maintained that the Board was fraudulent and negligent in its handling of Davis’s pardon, and that access to Davis’s pardon file would reveal that the Board never intended to remove him from the sex-offender registry. The Office of the Attorney General of Georgia entered a special appearance in the case, objecting to the motion to unseal Davis’s pardon file with the Board. Specifically, the Attorney General argued that “a pardon decision is not subject to judicial revie w, so it doesn’t matter what was said. It doesn’t matter what [the Board] revie wed. It doesn’t matter if there’s fraud or . . . [an] allegation of incompetence, none of that matters.” Ultimately, the trial court, citing state secrecy laws, declined to unseal Davis’s pardon file with the Board.

       Because the effect of Davis’s pardon on his duty to register as a sex offender presents an issue of first impression in Georgia, we invited the Office of the Attorney General of the State of Georgia and the Georgia Association of Criminal Defense Lawyers (“GACDL”), as well as other interested organizations, the opportunity to file a/nici/s curiae briefs in this case. GACDL and the District Attorneys’ Association of Georgia (“DAAG”) both did so, and we express our sincere appreciation to both associations for their thoughtful and scholarly submissions.

        See State v. Corhen, 306 Ga. App. 495, 496 (700 SE2d 912) (2010).

        Id. at 496-97 (punctuation omitted); accord State v. Harlacher, 336 Ga. App. 9, 10 (783 SE2d 411) (2016).

       OCGA § 17-7-54 (a); see also Harlacher, 336 Ga. App. at 10.

        State v. Horsley, 310 Ga. App. 324, 325 (2) (714 SE2d 1) (2011) (punctuation omitted).

        Id. (punctuation omitted).

        See State v. Brannan, 267 Ga. 315, 317, n.4 (477 SE2d 575) (1996) (holding that the parties consented to defendant’s use of facts outside the indictment to challenge same, notwithstanding the general prohibition against speaking demurrers in criminal cases); Schuman v. State, 264 Ga. 526 (448 SE2d 694) (1994) (holding that as there is no statutory proscription against such procedure, the State was precluded from challenging procedure under which trial court dismissed indictment, even though such constituted a speaking demurrer by defendant given that State also presented evidence and made no objections to procedure).

        State v. Land-O-Sun Dairies, Inc., 204 Ga. App. 485, 486 (419 SE2d 743) (1992) (punctuation omitted); see Dominick v. Bowdoin, 44 Ga. 357, 363 (1871) (noting that an argument that a pardon prevents prosecution should be treated as a plea in bar).

        See Harlacher, 336 Ga. App. at 10 (noting that “this Court reviews a trial court’s ruling on a general or special demurrer de novo in order to determine whether the allegations in the indictment are legally sufficient” (punctuation omitted)).

        See State v. Garlepp, 338 Ga. App. 788, 788 (790 SE2d 839) (2016) (noting that when the evidence is uncontroverted and witness credibility is not an issue, “our review of the trial court’s application of the law to the undisputed facts” regarding a plea in bar of double jeopardy is de novo (punctuation omitted)).

       In its amicus curiae brief, GACDL argues that because Davis’s challenge to the indictment is more properly characterized as a plea in bar, it was a directly appealable collateral order and Davis’s application for interlocutory review was unnecessary. See Patterson v. State, 248 Ga. 875, 876 (287 SE2d 7) (1982) (holding that denial of timely filed plea of double jeopardy is appealable without resort to interlocutory appeal procedures). But see Sosniak v. State, 292 Ga. 35, 40 (2) (734 SE2d 362) (2012) (holding that a defendant must follow the interlocutory appeal procedures when pursuing the appeal of the denial of a plea in bar based on an alleged violation of the constitutional right to a speedy trial). Nevertheless, because a review on the merits of Davis’s appeal is properly before this Court, at this time, we need not address whether the denial of Davis’s challenge was directly appealable.

       Ga. Const. Art. IV, § II, ¶ I.

       Ga. Const. Art. IV, § II, ¶ II (a); see Ga. Comp. R. & Regs. r. 475-2-.01 (1) (“The Board shall have the power to grant reprieves, pardons and paroles, to commute penalties, remove disabilities imposed by law and may remit any part of sentence(s) for any offenses against the State, after conviction.”); see also Harrison v. Wigington, 269 Ga. 388, 389 (1) (497 SE2d 568) (1998) (recognizing that the Board’s powers to pardon and its authority to remove disabilities are separate and distinct from one another); Ex parte Wells, 59 U. S. 307, 311 (18 How. 307, 15 LE 421) (1855) (citing 3 Edward Coke, Instit utes of the Lawes of England 233) (noting that a pardon may forgive “any crime, offence, punishment, execution, right, title, debt, or duty”); Joseph Story, 3 Commentaries on the Constitution of the United States, § 1494, 351-52 (1st ed. 1833) (“In point of fact, the power [to pardon] has always been found safe in the hands of state executives in treason, as well as other cases . . . .”).

        Pate v. State, 318 Ga. App. 526, 531 (3) (734 SE2d 255) (2012) (punctuation omitted); see Stephens v. State, 305 Ga. App. 339, 346-47 (5) (a) (699 SE2d 558) (2010) (holding that trial court’s sentence purporting to impose restrictions on defendant’s parole usurped an exclusive power of the Board and was, thus, a nullity).

        See Ga. Comp. R. & Regs. r. 475-3-.10 (3).

       (Punctuation omitted.)

        Rainer v. State, 286 Ga. 675, 675-76 (1) (690 SE2d 827) (2010); see Smith v. Doe, 538 U. S. 84, 93 (II) (A) (123 SCt 1140, 155 LE2d 164) (2003) (noting that restrictive post-incarceration measures on sex offenders is a legitimate nonpunitive governmental objective); Rogers v. State, 297 Ga. App. 655, 657 (678 SE2d 125) (2009) (noting that “[t]he designation of a person as a sexual offender is neither a sentence nor a punishment but simply a regulatory mechanism and status resulting from the conviction of certain crimes” (punctuation omitted)).

       The Compact Oxford English Dictionary 440 (2d ed. 1991); see Black’s Law Dictionary 474 (7th ed. 1999) (defining “disability” as, inter alia, an “[incapacity in the eye of the law”); id. (defining “civil disability” as “[t]he condition of a person who has had a legal right or privilege revoked as a result of a criminal conviction . . . .”); see also Ferguson v. Perry, 292 Ga. 666, 673 (2) (c) (740 SE2d 598) (2013) (noting that The New Shorter Oxford English Dictionary 682 (1993) defines disability to include an incapacity created by law).

        See Ga. Comp. R. & Regs. r. 560-2-13-.01 (1).

        See Ga. Comp. R. & Regs. r. 391-4-3-.09.

        Taylor v. State, 304 Ga. App. 878, 883 (1) (698 SE2d 384) (2010) (punctuation omitted).

        Id. (punctuation omitted); see OCGA § 42-1-12 (e).

        Taylor, 304 Ga. App. at 883 (1) (punctuation omitted).

        Id. (punctuation omitted).

        Id. at 884 (1); see OCGA § 42-1-12 (f) (6).

        See OCGA § 42-1-12 (a) (16).

        See OCGA § 42-1-12 (f) (5).

        Taylor, 304 Ga. App. at 884 (1); see OCGA § 42-1-12 (n) (1) (“Any individual who: [i]s required to register under this Code section and who fails to comply with the requirements of this Code section . . . shall be guilty of a felony and shall be punished by imprisonment for not less than one nor more than 30 years. . . .”).

        See Kent v. Dulles, 357 U. S. 116, 125-26 (78 SCt 1113, 2 LE2d 1204) (1958) (noting that the right to travel and freedom of movement is a “deeply engrained” constitutional and historical liberty interest enjoyed by Americans, and that “freedom of movement is basic in our scheme of values”); Williams v. Fears, 179 U. S. 270, 274 (21 SCt 128, 45 LE 186) (1900) (noting that “the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty ... to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation . . . .”); 1 W. Blackstone, Commentaries on the Law of England 130 (1765) (noting the right to move “to whatsoever place one’s inclination may direct”).

        See Ferguson, 292 Ga. at 672-73 (2) (b), (c) (holding that the prohibition against felon obtaining a permit to carry a firearm was a legal disability that the Board’s commutation order, which removed “all disabilities” and restored “all civil and political rights lost” as a result of felon’s past conviction, removed). Cf. Gregory v. Sexual Offender Registration Review Bd., 298 Ga. 675, 685-86 (2) (784 SE2d 392) (2016) (holding that the “opprobrium and reputational harm” associated with being classified as a sexually dangerous predator, as well as reporting, employment, and monitoring restrictions, rise to the level of a “liberty interest” within the meaning of the Due Process Clause of the Fourteenth Amendment to the United States Constitution); Smith v. State, 287 Ga. 391, 397-98 (2) (c) (697 SE2d 177) (2010) (noting that “[o]ther consequences that are also the result (sometimes even the automatic result) of guilty pleas can also be of enormous concern to certain defendants . . . [including, but not limited to] the impact of the criminal conviction on... sex offender registration....”); Taylor, 304 Ga. App. at 883-84 (1) (holding that counsel’s alleged failure to advise defendant that if he pleaded guilty to child molestation he would be required to register as a sex offender constituted deficient performance even if such registration requirements are characterized as collateral consequences rather than a criminal sanction).

       The State suggests that because the requirement to register as a sex offender is not a legal disability, the Board, which can only remove legal disabilities and restore civil and political rights, lacked the power to absolve Davis of the duty to register and that such can only be accomplished under the procedures outlined in OCGA § 42-1-19. But given our holding that the registration requirement does, in fact, constitute a legal disability, we need not address this argument other than to note that any implication that a statutory route is the exclusive means by which a felon may be relieved of the registration requirement rests on a faulty premise. See Ferguson, 292 Ga. at 670 (2) (a) (holding that “while the General Assembly had the authority to enact OCGA § 16-11-131 (c) and(d) as additional means by which convicted felons may obtain relief from State laws prohibiting them from possessing firearms, the Constitution would not authorize the General Assembly to preclude the Board’s power to grant similar relief”).

       (Emphasis supplied.) See The Compact Oxford English Dictionary 440 (2d ed. 1991) (defining “all” as, inter alia, “1. The entire or unabated amount or quantity of; the whole extent, substance or compass of; the whole ... 2. The entire number of; the individual components of, without exception. . . .”); see Black’s Law Dictionary 36 (7th ed. 1999) (defining “all” as “[t]he entire or unabated amount or quantity of; the whole extent, substance, or compass of; the whole . . .”).

        See Ferguson, 292 Ga. at 672 (2) (b) (“We are loath to read an order issued by a constitutional board to be a meaningless piece of paper.”).

        See generally Patterson v. State, 299 Ga. 491, 495 (789 SE2d 175) (2016) (holding that OCGA § 16-5-20 (a) (2) does not require that a defendant intend to place a victim in reasonable apprehension of receiving a violent injury, and noting that the General Assembly certainly knew how to phrase a statute to include such a requirement as shown by its simultaneous enactment of another criminal statute, which included an intent requirement); Fair v. State, 284 Ga. 165, 168 (2) (b) (664 SE2d 227) (2008) (noting that if the General Assembly had intended to require knowledge of the victim’s status as a peace officer in order for the aggravated circumstance under OCGA § 17-10-30 (b) (8) to apply, it knew how to do so); Avila v. State, 333 Ga. App. 66, 69-70 (775 SE2d 552) (2015) (noting that the General Assembly’s use of the phrase “during the commission of crime” in certain subsections of a criminal statute made clear that it knew how to specify that a disqualifying event must occur while the crime was in process and that the subsection at issue did not include such a limitation).

        Muckle v. Clarke, 191 Ga. 202, 204 (12 SE2d 339) (1940), citing Crooks v. Sanders, 115 SE 760, 762 (S.C. 1922) (“While the object of the [cjourts in construing instruments of this character is to carry out the intention of the parties, wherever that is doubtful the grant is construed most beneficially for the citizen and most strongly against the [sfovereign power. As a pardon is an act of grace, it is a universal rule of interpretation that limitations upon the operation of such a grant of clemency should be strictly construed.”) (emphasis supplied); accord State v. Rand, 32 NW2d 79, 84 (II) (Iowa 1948); see also Biddle v. Perovich, 274 U. S. 480, 486 (47 SCt 664, 71 LE 1161) (1927) (Holmes, J.) (“We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme . When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”).

       (Emphasis supplied.)

        See Ferguson, 292 Ga. at 672-73 (2) (b), (c) (holding that order by Board, which by its plain language removed “all disabilities” and restored “all civil and political rights lost” as a result of federal conviction for felony for moonshining, was not limited in scope to restoration of rights to vote, to serve on jury, and to hold public office (punctuation omitted)).

       According to the State, “at the time of [Davis’s] pardon,” the Board’s website contained the following language: “A pardon . . . does not relieve a convicted sex offender of the requirement to register on the Sex Offender Registry.” As we explain in this opinion, unattributable language on a website may not be used to inform the meaning of the language used in a pardon. But even if we were inclined to consider such extratextual materials, we would not do so here. Davis’s pardon was granted on February 13, 2013, and the copy of the website page contained in the record is dated over one year later (February 23, 2014). To be sure, the copy indicated that the process outlined therein was effective as of January 1, 2013; but we have no way of knowing, without going outside of the appellate record, whether the language in question actually appeared on the Board’s website at the time of the pardon. Thus, while we have no reason to doubt the sincerity of the State’s averment that this was indeed the case, the appellate record contains no evidence to support it.

        Conroy v. Aniskoff, 507 U. S. 511, 519 (113 SCt 1562, 123 LE2d 229) (1993) (Scalia, J., concurring); see also Day v. Floyd Cty. Bd. of Ed., 333 Ga. App. 144, 151 (775 SE2d 622) (2015) (Dillard, J., concurring fully and specially).

       Gary Portnoy, Where Everybody Knows Your Name, Theme from Cheers (Charles/ Burrows/Charles Productions & Paramount Network Television, 1982-93).

       We also agree with DAAG that the issues raised in this appeal have statewide implications and will undoubtedly be of interest to our Supreme Court in the inevitable certiorari petition that follows this decision.

       As DAAG aptly notes in its am icus curiae brief, the Board’s current process for handling pardon applications does not provide district attorneys or victims with the opportunity to be heard and express their concerns to the Board before it considers the merits of those applications.

        Compare OCGA § 42 -1 -19 (b) (2) (requiring petition for release from registration requirements to be “served on the district attorney of the jurisdiction where the petition is filed . .. .”); OCGA § 42-1-19 (d) (2) (noting that, in considering a petition for release from registration requirements, a court may consider “[a]ny evidence introduced by the district attorney . . . .”).

       Justice Antonin Scalia in public remarks at Chapman Law School (2005).


author: DOYLE, Chief Judge. MILLER, Presiding Judge, ANDREWS, Judge,

text:
    A16A1724.
    JOHNSON v. ALL AMERICAN QUALITY FOODS, INC.
    (798 SE2d 274)
   DOYLE, Chief Judge.

This case arises from the trial court’s order granting summary judgment to a Food Depot grocery store in a slip-and-fall case filed by a shopper, Balinda Johnson, against Food Depot’s parent company, All American Quality Foods, Inc. (“All American”). Johnson appeals, arguing that the trial court erred by granting summary judgment to All American. For the reasons that follow, we reverse.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.”

So viewed, the record shows that Johnson was shopping in the Food Depot when she slipped in a puddle of liquid from packaged meat. A surveillance camera recorded a view of the area where Johnson fell, and it showed that seven minutes and thirty seconds prior to the fall, Johnson, her friend Lorene Evans, and their children traversed the area of Johnson’s fall. Additionally, immediately prior to her fall, Johnson walked past the area, browsed either side of the aisle for less than one minute, and then walked back the way she had just come, at which point she slipped and fell on her side.

According to the inspection log sheet, an employee named Angelo completed an inspection of the aisle where Johnson fell at 12:01 p.m., approximately 38 minutes prior to the incident. After Johnson’s fall, the manager on duty, Chris Kempton, completed an incident report and discovered a trail of “spots of blood and meat products” in the aisle.

All American moved for summary judgment, contending that it had no actual knowledge of the hazard, it had no constructive knowledge of the hazard and had a reasonable inspection procedure, and Johnson had superior knowledge based on traversing the area at least four times prior to the fall. Johnson responded, arguing that there remained genuine issues of material fact as to when the hazard was created and whether the inspection procedure was reasonable.

After a hearing, the trial court issued an order granting All American’s motion for summary judgment, finding that there was no dispute of material fact as to All American’s lack of constructive knowledge of the spill. Moreover, the trial court found that the inspection was reasonable as a matter of law.

In her sole enumeration of error, Johnson contends that the trial court erred by concluding as a matter of law that All American had established and carried out a reasonable inspection on the day of the accident. Thus, Johnson contends that a factfinder could infer that All American had constructive notice of the hazard, and therefore, the trial court erred by granting its summary judgment motion. We agree.

As an initial matter, we note that Johnson traversed the area of her fall twice before slipping in the substance during her third crossing. This, however, does not support a finding on summary judgment that Johnson knew or should have known about the spill as a matter of law. That said,

[All American] is liable for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe. Thus, [All American] was required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. In a premises liability action, the plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control. Thus, to carry its initial burden and to survive a motion for summary judgment, a plaintiff must provide evidence that, when construed in his or her favor, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard.

We agree with the trial court, and Johnson does not contend, that All American did not have actual knowledge of the hazard. Thus,

[t]o establish constructive knowledge, [Johnson] must show that (1) a store employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by the store employees should have discovered it. Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. In addition, to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has demonstrated its inspection procedures.

Here, there is evidence that All American had an inspection procedure that called for inspections every hour, which allegedly occurred approximately 38 minutes prior to Johnson’s fall. And although a time-stamped list of inspections supposedly performed that day was appended to Kempton’s affidavit, the record shows that Kempton himself did not perform the inspections and thus could not swear that they were performed as noted on the printout. But pretermitting whether the printout and Kempton’s affidavit were sufficient to support the grant of summary judgment, this Court has found that questions of fact exist based on the reasonableness of an inspection procedure even if the inspection occurred as little as 15 minutes to 20 minutes prior to a fall. “The nature of a supermarket’s . . . business creates conditions which cause slip and falls to occur with some frequency. Under those circumstances, we have held that premises owners have a duty to inspect with greater frequency.” Thus, in this case, the trial court erred by finding as a matter of law that All American’s hourly inspection procedure shielded it from liability, and a jury question exists as to whether All American’s procedure was reasonable. Accordingly, we reverse the trial court’s grant of summary judgment to All American.

Judgment reversed.

Barnes, P. J., McFadden, P. J., Ray and Rickman, JJ., concur. Miller, P. J., concurs fully and specially. Andrews, McMillian and Self, JJ., dissent.

MILLER, Presiding Judge,

concurring fully and specially

I agree with the majority that the facts in this case create a jury question as to whether All American Quality Foods’s inspection procedures were unreasonable such that the supermarket had constructive knowledge of the alleged hazard that caused Ms. Johnson to fall. I write separately to emphasize that the fact-intensive nature of slip-and-fall cases will typically preclude summary judgment and require a jury to consider the merits. This does not mean, however, that this author is indicating that a plaintiff who merely avoids summary judgment is entitled to recover before the jury

To survive summary judgment in a slip-and-fall case, the plaintiff must show that the supermarket had actual or constructive knowledge of the hazard, and constructive knowledge can be inferred from a lack of reasonable inspection procedures. Ingles Mkts. v. Martin, 236 Ga. App. 810, 811 (513 SE2d 536) (1999). Whether an inspection procedure is “reasonable” depends on the facts and circumstances of the case. Food Lion v. Walker, 290 Ga. App. 574, 576 (1) (660 SE2d 426) (2008). This Court has said that more frequent inspections may be necessary in a supermarket setting, but we have never established a bright-line rule for what is a reasonable interval. Cf. id. (holding that the nature of the supermarket business requires more frequent inspections, but expressing no opinion on what the frequency should be). Given the fact-intensive nature of these claims, we should not create a bright-line rule.

[Sjummary adjudication as to constructive knowledge arising from the duty to inspect is not authorized absent plain, palpable and undisputable proof that customary inspection procedures or cleaning practices were in place, were actually followed and were adequate to guard against known or foreseeable dangers at the time of the patron’s alleged injuries.

(Citations omitted.) Burnett v. Ingles Mkts., 236 Ga. App. 865, 867 (514 SE2d 65) (1999). “The evidence in the case sub judice does not satisfy these criteria.” Id.

Certainly there are slip-and-fall cases that are appropriate for summary judgment. See, e.g., Deloach v. Food Lion, 228 Ga. App. 393, 395 (491 SE2d 845) (1997) (summary judgment is proper where the plaintiff has failed to come forward with evidence to create an issue of fact that the supermarket had constructive knowledge of the hazard). See also Robinson v. Kroger Co., 268 Ga. 735, 737 (1) (493 SE2d 403) (1997) (recognizing that summary judgment may be appropriate where the plaintiff could not establish the defendant’s actual or constructive knowledge of the hazard). Supermarket slip- and-fall cases turn on the facts, and any determination of reasonableness of a supermarket’s inspection procedures must depend on the particular facts of the case. The particular facts of this case do not warrant adjudication at the summary judgment stage of the litigation.

ANDREWS, Judge,

dissenting.

I dissent because I believe the trial court correctly found as a matter of law that the appellee carried out a reasonable inspection procedure and had neither actual nor constructive knowledge of the hazard.

1. To demonstrate its lack of constructive knowledge of the hazard in this case, the appellee relied upon a report generated by an electronic inspection monitoring system the store utilized. The appellant contends the report was inadmissible hearsay on the ground the appellee failed to properly authenticate it as a business record.

Under OCGA § 24-8-803 (6), a document shall not be excluded as hearsay, where it is

... a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. . . .

In this case, the appellee submitted the affidavit of the co-manager of the grocery store who personally responded to the slip and fall incident. He explained that it was the store’s policy to conduct formal inspections of the premises every hour using the Gleason ESP monitoring system, which required the inspecting employee to walk throughout the store and, at designated inspection sites, to hold a handheld device up to sensors that recorded the inspection data. The co-manager identified the system’s computer report attached to the affidavit as a “true and accurate copy of the inspection report for the date in question.” The computer-generated inspection report, which reflects the date of the incident and was printed the day after the incident, indicates the time of each inspection stop during each hourly inspection, the identity of the employee, the number and location of the sensors, and the condition of the inspected areas.

The obvious purpose of the monitoring system was to contemporaneously document compliance with the store’s inspection procedure. Nothing about the computer report suggests any lack of trustworthiness, and the co-manager’s affidavit sufficiently authenticated the inspection report. See, e.g., Loyal v. State, 300 Ga. App. 65, 66 (684 SE2d 124) (2009) (warehouse electronic security log); Hamilton v. State, 297 Ga. App. 47, 48 (1) (676 SE2d 773) (2009) (motel electronic key card interrogation log).

2. “[S]ummary adjudication as to constructive knowledge arising from the duty to inspect is not authorized absent plain, palpable and undisputable proof that customary inspection procedures or cleaning practices were in place, were actually followed and were adequate to guard against known or foreseeable dangers at the time of the patron’s alleged injuries. [Cits.]” Burnett v. Ingles Mkts., 236 Ga. App. 865, 867 (514 SE2d 65) (1999).

In the instant case, the affidavit of the store’s co-manager indicated that part of its inspection procedure required employees to be on the lookout for hazards as they went about their jobs during the day The affidavit and the inspection report also established the store had a regular procedure of formally inspecting the store every hour, and the procedure was followed on the day of the incident. In fact, the inspection report reflects that during the 13-hour period running from 7:55 a.m. to 9:08 p.m. on the day of the incident, a total of 9 hazard clean-ups were recorded, attesting to the effectiveness of the inspection procedure. That averages out to a hazard occurring approximately every 1.4 hours, compared to the appellee’s inspection schedule of every hour.

The appellee further showed the following: (1) the area where the appellant fell was inspected approximately 37 minutes before the fall; (2) the substance on the floor appeared to be meat product or blood; (3) the store’s surveillance video showed the appellant’s friend traversing the area approximately six minutes before the fall occurred, with packages of meat in her shopping cart; (4) the video also showed several other patrons, including the appellant, traversing the area safely during the six minutes preceding the fall; (5) no store employees were in the immediate area of the hazard; and (6) the store had no knowledge of any leaks from its red meat packaging prior to this incident.

Once a defendant demonstrates a lack of actionable constructive knowledge by compliance with reasonable inspection procedures, the burden shifts back to the plaintiff to show how long the foreign substance had been allowed to remain on the floor. The plaintiff must show that the substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant.

(Citations and punctuation omitted.) Hopkins v. Kmart Corp., 232 Ga. App. 515, 518 (2) (502 SE2d 476) (1998). In the instant case, the appellee presented evidence showing it carried out a reasonable and effective inspection procedure, but in turn the appellant came forward with no competent evidence showing anything else that would impute constructive knowledge of the hazard to the appellee.

This Court has occasionally found jury issues on the reasonableness of inspection procedures where the inspections occurred at even shorter intervals than in this case, but in those cases the store proprietor had some notice of the risk of a particular hazard. See Food Lion v. Walker, 290 Ga. App. 574, 576 (1) (660 SE2d 426) (2008). In that regard, the appellant claimed to have overheard a store employee named “Bob,” but who otherwise was unidentified, remarking that store personnel had not been packaging the meat correctly But that utterance would not qualify as an admission under OCGA § 24-8-801 and constituted inadmissible hearsay. The record is devoid of anything else that would have put the appellant on notice of the need for more frequent inspections.

The evidence showed that neither party here had actual knowledge of the hazard. And as the appellee carried out a reasonable inspection procedure on the day of the incident and the appellant failed to show anything else that could impute knowledge of the hazard to the appellee, the majority opinion is in error in reversing the trial court’s grant of summary judgment for the appellee.

Decided March 10, 2017.

Kynes Law, Leland H. Kynes; Haug Law Group, James R. Haug, Colin A. Barron, for appellant.

Meadows, Made & Sutton, Rod G. Meadows, Stephen P. Morris, for appellee.

I am authorized to state that Judge McMillian and Judge Self join in this dissent.

       (Citation and punctuation omitted.) Samuels v. CBOCS, Inc., 319 Ga. App. 421, 422 (742 SE2d 141) (2012), quoting Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

       See Food Lion v. Walker, 290 Ga. App. 574, 577-578 (3) (660 SE2d 426) (2008); McCoy v. Winn Dixie Stores, 238 Ga. App. 543, 544 (519 SE2d 689) (1999) (holding that a question of fact exists as to whether plaintiff should have seen a puddle — a non- static hazard — prior to a fall). See also Wiley v. Liberty Southern, 243 Ga. App. 110, 111-112 (532 SE2d 456) (2000) (“At its root, the issue ... is whether taking into account all the circumstances existing at the time and place of [the plaintiff’s] fall, [the plaintiff] exercised the prudence the ordinarily careful person would use in a like situation.”) (punctuation omitted), quoting Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997).

       (Citations and punctuation omitted.) Samuels, 319 Ga. App. at 423, quoting American Multi-Cinema v. Brown, 285 Ga. 442, 444(2) (679 SE2d 25) (2009); Robinson, 268 Ga. at 740 (1).

       (Citation and punctuation omitted.) Walker, 290 Ga. App. at 576 (1).

        See Davis v. Bruno’s Supermarkets, 263 Ga. App. 147, 149-150 (1) (587 SE2d 279) (2003).

       See Burnett v. Ingles Mkts., 236 Ga. App. 865, 867-868 (514 SE2d 65) (1999); Jones v. Krystal Co., 231 Ga. App. 102, 103-104 (b) (498 SE2d 565) (1998). See also Davis, 263 Ga. App. at 150 (2) (holding that “an inspection may be required more frequently than every 30 minutes”).

       (Punctuation omitted.) Walker, 290 Ga. App. at 576 (1).

       See id. at 576-577 (1).