author: Rickman, Judge. ANDREWS, Judge,

text:
    A17A0613.
    DONASTORG v. RAINBOW USA, INC.
    (802 SE2d 425)
   Rickman, Judge.

In this premises liability action, Precious Donastorg sued Rainbow USA, Inc., to recover monetary damages for injuries she allegedly received after stepping on an anti-theft sensor pin while shopping in a clothing store owned and operated by Rainbow. The trial court granted summary judgment in favor of Rainbow upon concluding that Rainbow lacked superior knowledge of the hazard that injured Donastorg. Donastorg argues that genuine issues of material fact remain as to Rainbow’s knowledge of the hazard such that the grant of summary judgment in its favor was improper. We agree and reverse.

We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. A defendant may obtain summary judgment by showing an absence of evidence supporting at least one essential element of the plaintiff’s claim.

(Citations omitted.) Kennestone Hosp. v. Harris, 285 Ga. App. 393, 393-394 (646 SE2d 490) (2007).

The pertinent facts in this case are largely undisputed. The record shows that shortly after 4:00 on the afternoon in question, Donastorg was shopping with her daughter at a Rainbow clothing store when she stepped on an anti-theft sensor pin located on the store’s floor. Donastorg stepped on the pin with her left foot as she removed an item of clothing from the clothing rack and held it up to her daughter. The pin, approximately the size of a thumb tack, went through Donastorg’s sandal and punctured her foot, allegedly causing permanent nerve and/or tissue damage.

Donastorg deposed that, at the time of the incident, a Rainbow employee was unloading new inventory immediately to Donastorg’s right, and three additional employees were standing behind the cash registers approximately four to five feet away. Neither Donastorg nor any of the Rainbow employees saw the pin prior to Donastorg stepping on it, and it is unknown how the pin got onto the floor or when it surfaced there. The record contains no evidence that the sensor corresponding to the pin was ever located.

Donastorg filed suit against Rainbow, alleging that Rainbow breached its duty of care by failing to keep its premises free from hazardous conditions that it knew or should have known existed. The evidence obtained during discovery showed that every Rainbow employee was trained on how to securely attach the security sensors to merchandise, and the sensors were attached to all or most of the items in the store. Rainbow received new inventory daily, and its employees were continuously attaching security sensors to the newly received items. Although the employees generally attached the sensors in the stockroom where new items were received, they were also authorized to attach them on the storeroom floor during working hours.

Upon the purchase of an item, Rainbow employees would remove the security sensor at the cash registers during the checkout process; however, Rainbow suffered from shoplifters “every day” and “around the clock” who would pry off the sensors and dispose of them without regard. The security sensors were also known to occasionally fall off of dropped items, and there was testimony that stray pins had been found on the floor on previous occasions. Rainbow’s training manual specifically cautioned employees to ensure that the sensor pins were kept off the floor as “[t]hey could be stepped on and cause injury”

The store policy mandated that the floor be swept twice daily — once immediately prior to the store opening and once at closing — and otherwise “if needed.” The floor had been swept prior to the store’s 10:00 a.m. opening on the day in question, approximately six hours before the incident. Rainbow introduced no evidence of any additional policies or procedures requiring that the storeroom floor be inspected or swept during working hours.

Rainbow moved for summary judgment, asserting that it lacked the requisite knowledge of the hazard so as to absolve it of liability The trial court granted Rainbow’s motion, and this appeal follows.

Under Georgia law, “[a]n owner or occupier of land has a legal duty, enforceable by lawsuit, to exercise ordinary care to keep and maintain its premises and the approaches in a condition that does not pose an unreasonable risk of foreseeable harm to the invited public.” American Multi-Cinema v. Brown, 285 Ga. 442 (679 SE2d 25) (2009); see OCGA § 51-3-1 (“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”). Nevertheless, a property owner/occupier “is not an insurer of the safety of its invitees. The mere occurrence of an injury does not create a presumption of negligence.” (Citation and punctuation omitted.) Kennestone Hosp., 285 Ga. App. at 394.

Georgia has implemented a two-prong test in order to assess liability to a property owner/occupier on a premises liability claim involving a foreign object: “an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.” Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997). The record here is undisputed that Rainbow did not have actual knowledge of the existence of the pin that injured Donastorg and that Donastorg lacked knowledge of the pin despite exercising ordinary care for her own safety. Thus, this case turns on whether Rainbow had constructive knowledge of the hazard.

A plaintiff may demonstrate a proprietor’s constructive knowledge of a hazard by showing that “(1) a store employee was in the immediate area of the hazard and could have easily seen the [foreign object] or (2) the foreign [object] remained long enough that ordinary diligence by the store employees should have discovered it.” (Citation and punctuation omitted.) Johnson v. All American Quality Foods, 340 Ga. App. 664, 666 (798 SE2d 274) (2017); see Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

1. Donastorg asserts that constructive knowledge may be inferred because several Rainbow employees were working in the area of the hazard and had the opportunity to discover and remove the pin prior to her injury. The employees’ mere presence, however, is not in and of itself sufficient to survive summary judgment on the issue of constructive knowledge. See Kroger Co. v. Williams, 274 Ga. App. 177, 178 (617 SE2d 160) (2005). Rather, “it must be shown that the [employees were] in a position to have easily seen the [object] and removed it.” (Citation and punctuation omitted; emphasis supplied.) Id. In light of the small nature of the pin, there is no evidence from which to conclude that any Rainbow employee — three of whom were four to five feet away and behind cash registers, and the other of whom was on the side of Donastorg opposite the pin — would have been in a position to have easily seen and removed it. It follows that Donastorg has failed to create a jury question as to this issue. See id. at 178-179; Bolton v. Wal-Mart Stores, 257 Ga. App. 198 (570 SE2d 643) (2002).

2. The evidence does create a jury issue, however, as to whether Rainbow had constructive knowledge of the hazard using the second prong of the test, i.e., whether the pin had remained on the floor 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.

(Citation and punctuation omitted.) Food Lion v. Walker, 290 Ga. App. 574, 576 (1) (660 SE2d 426) (2008). The reasonableness of an inspection procedure depends on the nature of the business, the size of the store, and the number of customers. See id. Significantly,

summary 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 Markets, 236 Ga. App. 865, 867 (514 SE2d 65) (1999).

There is no doubt, as illustrated by the express warning in its training manual, that Rainbow was aware of the specific risk associated with stray sensor pins on the floor. Likewise, the abundance of shoplifting activity suffered by Rainbow on a daily basis is well established in the record, as is Rainbow’s admission that shoplifters tended to randomly discard the sensor pins without regard to where they landed. Rainbow employees were authorized to attach the security sensors on the storeroom floor, and the pins were known to become dislodged from dropped items and had previously been found on the floor. Yet Rainbow introduced no evidence of any policy or procedure requiring that the storeroom floor be inspected for safety hazards during working hours.

In light of this evidence, we cannot say that the record before this Court presents “plain, palpable and undisputable proof” that Rainbow’s inspection procedures or cleaning practices “were adequate to guard against known or foreseeable dangers” at the time of Donas-torg’s injury Burnett, 236 Ga. App. at 867.

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

(Citation and punctuation omitted.) Kroger Co. v. Schoenhoff, 324 Ga. App. 619, 622-623 (751 SE2d 438) (2013). It follows that the trial court’s grant of summary judgment in favor of Rainbow as to the issue of constructive knowledge under the second prong of the test was erroneous. See Williams v. GK Mahavir, Inc., 314 Ga. App. 758, 761 (726 SE2d 71) (2012) (reversing the grant of summary judgment to hotel defendant because question of fact remained as to whether hotel policy of cleaning the lobby “only if it needed to be cleaned” without any scheduled walk through or inspections for known hazards was reasonable); Gilbert v. Automotive Purchasing Svc., 254 Ga. App. 770, 772 (563 SE2d 906) (2002) (reversing grant of summary judgment to automobile seller after plaintiff slipped and fell on showroom floor because “it is for a jury to determine whether the [store] employee conducted a cursory and inadequate inspection which failed to disclose the substance upon which [plaintiff] slipped and whether the substance was discoverable upon a reasonable inspection”); see also Ramotar v. Kroger Co., 322 Ga. App. 28, 31 (743 SE2d 591) (2013) (physical precedent only) (reversing grant of summary judgment in favor of grocery store because, “[i]n the absence of reasonable inspection procedures, we cannot conclude as a matter of law that [defendant store] lacked constructive notice of the alleged hazard”).

Citing Chastain v. CF Ga. North DeKalb, 256 Ga. App. 802 (569 SE2d 914) (2002), Rainbow asserts that the trial court properly granted summary judgment in its favor regardless of the adequacy of its inspection procedures because of Donastorg’s deposition testimony regarding her inability to see the pin. In Chastain, the plaintiff deposed that in order to see the dribbles of water on the shiny mall floor that caused her to fall, one would have had to bend down and look from a specific angle. Id. at 803-804. In affirming the trial court’s grant of summary judgment to the mall owner and janitorial service responsible for maintaining the floor, the majority of this Court held that, regardless of whether the defendants complied with their inspection policy, “[i]f there is no evidence that the [hazard] could have been discovered during a reasonable inspection, then no inference arises that defendants’ failure to discover the defect was the result of any alleged failure to inspect.” (Citation omitted.) Id. at 803; see also Blake v. Kroger Co., 224 Ga. App. 140, 144 (1) (480 SE2d 199) (1996). In essence, the Chastain majority held that plaintiff’s testimony established no causal connection between plaintiff’s injury and any alleged inaction by defendants as a matter of law. We cannot say the same under the facts presented in this case.

First, it is not immediately clear from Donastorg’s testimony that it was the nature or location of the pin, as opposed to her position relative to it, that rendered it difficult, for her to detect:

[Attorney]: Did you see the pin before you stepped on it?
[Donastorg]: No.
[Attorney]: Okay Was the pin covered by anything?
[Donastorg]: No.
[Attorney]: It was just in the middle of the floor?
[Donastorg]: Yes.
[Attorney]: Do you think if you would have looked down at the floor you would have seen the pin?
[Donastorg]: No, because the rack — the rack is so full, and I’m short, and [my daughter is] short, so we wouldn’t have seen it. It happened, like, right there.
[Attorney]: I know. I understand you didn’t see it, but I guess my question is ... if you looked down at the ground like this, do you think you could have seen it?
[Donastorg]: No.
[Attorney]: I thought you said it was out in the open.
[Donastorg]: No, you wouldn’t have seen it. You tell me if I had looked down in front of me? No, because I was this way when I step backwards on the left side of the floor.
[Attorney]: But there was nothing hiding it?
[Donastorg]: No.
[Attorney]: Okay, if you were looking for the pin, do you think you could have seen it?
[Donastorg]: No.

Properly construing this testimony in the light most favorable to Donastorg, we cannot definitively conclude that it equates to an admission that even an employee who was fully aware of the hazards associated with stray sensor pins would not have been able to see and identify the hazard during a reasonable inspection of the storeroom floor. See Samuels v. CBOCS, Inc., 319 Ga. App. 421, 424 (742 SE2d 141) (2012) (distinguishing Chastain and reversing the grant of summary judgment to restaurant because it failed to show an inspection had been conducted and a factual question remained as to whether the foreign object would have been difficult to see during a reasonable inspection); Walker, 290 Ga. App. at 577 (2) (distinguishing Chastain and rejecting store’s assertion that it was entitled to summary judgment due to the difficulty in detecting the foreign substance when it “was on notice of the risk of the particular hazard that caused [plaintiff] to fall”).

Moreover, we cannot say as a matter of law that there is no causal connection between Donastorg’s injury and Rainbow’s lack of an inspection procedure to identify and remove known potential hazards from the storeroom floor during working hours. See generally Samuels, 319 Ga. App. at 424; Walker, 290 Ga. App. at 577-578 (3). Compare Rodriquez v. City of Augusta, 222 Ga. App. 383 (474 SE2d 278) (1996) (affirming grant of summary judgment to property owner because an inspection had been done five to ten minutes prior to plaintiff’s fall and the foreign substance “was not visible to the eye”).

With regard to premises liability cases, the Supreme Court has made plain that where reasonable minds can differ as to the conclusion to be reached with regard to questions of whether an owner/occupier breached the duty of care to invitees . . . , summary adjudication is not appropriate.

(Citation and punctuation omitted.) Samuels, 319 Ga. App. at 424.

Accordingly, we reverse the trial court’s grant of summary judgment to Rainbow and hold that genuine issues of material fact remain on the question of constructive knowledge.

Judgment reversed.

Ellington, P J., Dillard, P. J., McFadden, P J., Ray, Branch and Self, JJ., concur. Andrews and Bethel, JJ., dissent.

ANDREWS, Judge,

dissenting.

This is yet another premises liability case which turns on imputing the premises owner with constructive knowledge of the hazard, despite the absence of any evidence in the record as to how long the foreign object had been on the floor. In such cases, under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), it should be axiomatic that a premises owner would be entitled to summary judgment where there is an absence of evidence to establish an essential element of the plaintiff’s claim. However, in contravention of Lau’s Corp., this Court wrongly continues to impose a duty on the premises owner to produce evidence of adherence to a reasonable inspection procedure before considering the absence of evidence to support the plaintiff’s claim. See Williams v. GK Mahavir, Inc., 314 Ga. App. 758, 763 (726 SE2d 71) (2012) (Andrews, J., concurring dubitante).

Nevertheless, even imposing such a duty on the appellee premises owner in this case, I believe the appellee satisfied that requirement and still was entitled to summary judgment. What constitutes a reasonable inspection procedure depends “on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store’s location.” Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 748 (1) (527 SE2d 36) (2000). In this case, the appellee was a clothing store, not one of the usual suspects in a premises liability case where liquids or produce on the floor seems to be a common hazard.

The appellee acknowledged its use of the security pins presented a risk of injury; its employee training materials cautioned about loose pins and showed the employees how to attach the security pins properly so as to protect the inventory against theft and to protect customers from the risk of puncture. But the record in this case shows the risk of injury associated with the security pins was effectively managed by the appellee. The appellee carried out a daily inspection procedure at least twice a day, by sweeping the floors in the morning and in the afternoon, and more frequently if needed. The store inventory usually consisted of approximately 95,000 articles of clothing, most of which had security pins attached. The store manager explained that pins couldbe loosened in a number of ways: sometimes by not attaching them securely; sometimes when an article of clothing was dropped to the floor; and sometimes when shoplifters pried them off. The store manager acknowledged a loose pin occasionally was found on the floor, but there was no probative evidence of any prior similar incidents. In light of the large number of security pins used in the store and the absence of any evidence of prior incidents of injury caused by pins on the floor, either the store’s customers were exposed to a minimal risk, or the store exercised extraordinary care keeping the premises safe. Under these circumstances, the appellee carried out a reasonable inspection procedure, as there was no need for the appellee to monitor the store floor more frequently than it did.

Moreover, even if the appellee’s inspection procedure was not reasonable, or even if the appellee had totally failed to inspect the premises, constructive knowledge of the loose security pin on the floor could not be imputed to the premises owner unless the hazard could have been easily seen and removed. See Kitchens v. Restaurant Mgmt. Svcs., 192 Ga. App. 313, 314 (385 SE2d 11) (1989); Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (512 SE2d 2) (1999). “If there is no evidence that the [pin] could have been discovered during a reasonable inspection, then no inference arises that [the appellee’s] failure to discover the defect was the result of any alleged failure to inspect.” (Citation omitted.) Chastain v. CF Ga. North DeKalb, 256 Ga. App. 802, 803 (569 SE2d 914) (2002).

In the instant case, the only evidence concerning the visibility of the security pin was the plaintiff’s admission that she could not have seen the pin even if she had been looking right at it. If the pin was invisible to the plaintiff, it stands to reason the pin was just as invisible to any of the appellee’s employees. For that reason, “summary judgment was proper because the alleged defect was, by [the appellant’s] own admission, so difficult, to detect. Constructive knowledge can only be inferred with proof that the proprietor or its agent could have easily discovered and corrected the alleged hazard.” (Citation omitted.) Lindsey v. Ga. Bldg. Auth., 235 Ga. App. 718, 720 (509 SE2d 749) (1998).

Decided June 29, 2017.

Nathan W. Kotas, for appellant.

Weinberg Wheeler Hudgins Gunn & Dial, Earl W. Gunn, Jackson A. Dial, for appellee.

In summary, here it was undisputed neither party had actual knowledge of the loose security pin on the floor, and there was no evidence as to how long the pin had been on the floor. There was no evidence of any prior similar incident involving this specific hazard, which, considering the sheer volume of security pins in use at the appellee’s store on a daily basis, surely attested to the appellee’s diligence in maintaining a premises safe for its customers. And lastly, the evidence showed that the loose security pin was not visible and therefore not easily removable. The above factors add up to one conclusion: that the appellee exercised ordinary care in keeping its premises safe for its invitees and thus was entitled to summary judgment.

Accordingly, I dissent from the majority opinion’s reversal of the grant of summary judgment for the appellee.

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

       The district supervisor deposed that Rainbow’s policy requires that security sensors be placed on all items costing over $10.99, although the co-manager of the subject store deposed that its employees attach sensors to every item of clothing in the store.

       Although the employee to Donastorg’s immediate right was unloading new inventory at the time of the incident, that employee was not deposed, and the record otherwise contains no evidence as to whether she was attaching the sensor pins to the new items.

       During one deposition, the deposing attorney was able to pry open and remove a sensor pin without the need for any tools.

       The sole record evidence related to prior incidents involving the security pins is the store manager’s affirmative response when asked if stray pins had ever before been found lying on the floor, and Donastorg’s deposition testimony that an unidentified Rainbow employee mentioned after the incident that “years ago it happened to another lady.” Nevertheless, construing this evidence, as the dissent does, to mean that “either the store’s customers were exposed to a minimal risk, or the store exercised extraordinary care in keeping the premises safe” does not comport with our standard of review on summary judgment.


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A17A0512.
    POLITZER v. XIAOYAN et al.
    (801 SE2d 114)
   DOYLE, Chief Judge.

Eva Emery Politzer sued Huang Xiaoyan and her underinsured motorist carrier, Travelers Casualty Company of America (collectively, “the defendants”), seeking to recover for injuries she sustained when she was struck by a vehicle driven by Xiaoyan. The trial court granted summary judgment to the defendants, and this appeal followed. We affirm, for the reasons that follow.

Summary judgment is due to be granted when the moving party has demonstrated that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. A defendant may do this by either presenting evidence negating an essential element of the plaintiff’s claims or establishing from the record an absence of evidence to support such claims. Thus, the rule with regard to summary judgment is that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

“A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

So viewed, the record shows that on November 13, 2011, at approximately 7:30 p.m., Politzer went for a walk after returning home from a day of work. It was dark, and she was wearing black pants, a black t-shirt, a black jacket with white lettering, a black hat, and white tennis shoes. Politzer left her house, walked down Barfield Road, crossed over Hammond Drive at a crosswalk, and continued down Barfield until she reached Mount Vernon Highway, at which point she turned around and began walking back down Barfield toward her home. Politzer decided to cross Hammond Drive again but elected to do so outside of the crosswalk and intersection she had traversed a few minutes earlier, believing that it was unsafe to cross at the intersection because drivers “tend to fly through” it, the road was at an incline, visibility was limited, and she was unable to see oncoming traffic at the intersection.

Before crossing Hammond, Politzer stopped and looked while standing in the grass in a worn footpath; there was no sidewalk where she stood. She saw a single vehicle — Xiaoyan’s — approaching with its headlights on; she was not sure how far away it was, but later recalled that it was “not too far,” but “far enough away that [she] could get across [the road].” Politzer then crossed the first two lanes and stood in the median. She looked in the direction ofXiaoyan and again saw his vehicle approaching. Nevertheless, she continued across the street, looking straight ahead; she was tired and “thinking about the next day and what she had to do,” and she did not look again in Xiaoyan’s direction. Politzer was not sure how fast Xiaoyan was traveling, but later stated that she would not have continued across the road if she thought he was speeding. Xiaoyan struck her when she was a few steps away from the other side of the road.

Police responded to the scene. The investigating officer noted in the police report that “[Politzer] was not crossing in a cross walk and darted in front of [Xiaoyan’s] vehicle . . . when she was struck. [Xiaoyan] had the right of way and did not see [Politzer].” Xiaoyan was not cited; Politzer was cited for darting into traffic and for unlawfully walking upon the roadway under the influence of alcohol. Politzer later pleaded guilty to darting into traffic, and the other charge merged into it.

Travelers moved for summary judgment, and Xiaoyan joined the motion, arguing that there was no evidence that Xiaoyan was negligent; Politzer had assumed the risk of injury; and Politzer had failed to exercise ordinary care for her own safety. Following a hearing, the trial court granted the motion in a single-page order without specifying the basis for the ruling. This appeal followed.

1. As an initial matter, we address the parties’ confusion regarding whether the trial court granted summary judgment to Xiaoyan as well as Travelers. As aforementioned, Xiaoyan joined Travelers’s motion and adopted by reference the related pleadings. In the order, styled “Order Granting Traveler[ ]s Insurance Company’s Motions for Summary Judgment,” the trial court noted that Xiaoyan joined the motion, which it then granted. Thus, the trial court granted summary judgment to both defendants.

2. Politzer argues that the trial court erred by granting summary judgment to the defendants on her negligence claim. We disagree.

The elements of a cause of action for negligence in Georgia are: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. The mere fact that an accident happened and a plaintiff was injured affords no basis for recovery unless the plaintiff carries his burden of proof and shows that the accident was caused by specific acts of negligence of the defendant.

In Moore v. Camara, the plaintiff was walking along the shoulder of a highway at 10:00 p.m. when he was struck by the defendant’s vehicle. The defendant never saw the plaintiff, he was not speeding, he had his headlights on, and there was no traffic in the area. The plaintiff told the police officer who responded to the scene that he had been trying to cross the highway when he was hit, and “[t]he officer concluded that [the plaintiff] misjudged the clearance and was distracted as he was crossing the highway, thus causing the accident.” This Court affirmed the grant of summary judgment to the driver, concluding that

a jury would not be authorized to infer negligence because an inference cannot be based on evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. A finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.

Here, the evidence shows that Politzer, who was dressed in black clothing, crossed a major roadway at night outside of an available crosswalk, and there is no evidence that Xiaoyan was speeding, was violating any rules of the road, or saw her before striking her. And Politzer’s “suggestion that [Xiaoyan] must have failed to exercise due diligence to avoid striking [her] is not supported by evidence. Because [Politzer] points to no specific evidence in the record giving rise to a triable issue, we affirm.”

Decided June 2, 2017

Reconsideration denied June 30, 2017

William P. Tinkler, Jr., for appellant.

Downey & Cleveland, Alexander McDonald, J. Colby Jones, Andrew A. Curtright; Swift, Currie, McGhee & Hiers, David M. Atkinson, for appellee.

3. Based on our holding in Division 2, we need not address whether Politzer assumed the risk of her injuries or failed to exercise ordinary care for her own safety.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       (Punctuation omitted.) Moore v. Camara, 317 Ga. App. 651, 651-652 (732 SE2d 319) (2012), quoting Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010). See also OCGA§ 9-11-56 (c).

       (Punctuation omitted.) Hunsucker v. Belford, 304 Ga. App. 200 (695 SE2d 405) (2010).

       Hammond Drive was a four-lane road with a flat median consisting of painted lines.

       OCGA § 40-6-91 (b) (“No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield.”).

       OCGA § 40-6-95 (“A person who is under the influence of intoxicating liquor or any drug to a degree which renders [her] a hazard shall not walk or be upon any roadway or the shoulder of any roadway.”).

       (Punctuation omitted.) Moore, 317 Ga. App. at 652-653, quoting Berry v. Hamilton, 246 Ga. App. 608, 608-609 (541 SE2d 428) (2000).

       317 Ga. App. at 651.

       See id. at 652.

       See id.

       See id.

       (Punctuation omitted.) Id. at 653, quoting Butler v. Huckabee, 209 Ga. App. 761, 762 (2) (434 SE2d 576) (1993) and Werner Enterprises v. Lambdin, 307 Ga. App. 813, 815 (706 SE2d 185) (2011).

        Moore, 317 Ga. App. at 653. See also Tucker v. Love, 200 Ga. App. 408, 409 (1) (408 SE2d 182) (1991) (finding that the defendant bus driver had no duty to discover the pedestrian plaintiff in the street because she entered the roadway after the bus had begun to move forward after discharging a passenger, and “there is no evidence whatsoever that [the defendant] could have, or should have, seen the victim running into a collision path with the [bus] ”) (punctuation omitted); Johnson v. Ellis, 179 Ga. App. 343, 344-345 (346 SE2d 119) (1986) (affirming the grant of a directed verdict because there was no evidence that the defendant driver, who had her headlights on and was traveling within the speed limit, “could have, or should have, seen” the plaintiff, who had been drinking, crossing a four-lane highway in a dimly lit interchange and colliding with her car). Compare Fountain v. Thompson, 252 Ga. 256, 257 (312 SE2d 788) (1984) (holding that a jury could find that a defendant driver was negligent in failing to discover the pedestrian, who had an illegal blood alcohol concentration and was lying prone on “a straight, clear, unobstructed section of highway” because the driver “could have seen the deceased well beforehand and certainly in time to stop or evade him if he had been more observant”).


author: Andrews, Judge. MILLER, Presiding Judge,

text:
    A15A0092.
    THE STATE v. ANDRADE.
    (803 SE2d 118)
   Andrews, Judge.

Following a hearing, the trial court granted, in part, Aram Andrade’s motion to suppress statements he made to a police officer. The State appeals, and we reverse.

“When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.” Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015). An appellate court must (1) accept a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit its consideration of the disputed facts to those expressly found by the trial court. Id. However, an appellate court “may also consider facts that ‘definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility,’ such as facts indisputably discernible from a videotape.” State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248) (2015); see also Hughes, 296 Ga. at 746 (1) n. 5 (noting that “to the extent that material facts could be discerned by appellate court from video recording, no deference to findings of trial court was required”). And we review de novo the trial court’s application of law to the undisputed facts. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

So viewed, the record shows that on October 11,2012,17-year-old Andrade agreed to speak to an officer from the City of Pearson Police Department, and he accompanied the officer to the local sheriff’s office. Beginning that night and continuing into the early morning hours of October 12, Andrade gave an initial interview, which was recorded. At the beginning of the initial interview, the officer told Andrade that he was not under arrest, not required to answer any questions, and free to leave at any time. Andrade agreed to speak with the officer.

After the initial interview concluded, the officer learned of evidence that had been discovered during a consent search of Andrade’s house and sought to interview Andrade again. The second interview was also recorded, although the recording is of poor quality. At the beginning of his second interview, Andrade was advised of his Miranda rights, both orally and in writing, and signed a waiver of those rights, including his right to remain silent. Immediately thereafter, the officer asked Andrade whether he wanted to make a statement. Andrade’s response is unintelligible on the recording, and the officer, who evidently could not understand the response, stated, “I’m sorry?” Andrade looked down, shook his head slightly, and mumbled something that could have been “no,” but also could have been, “I don’t know.” At that point, the officer stated: “Alright. We — we need to talk about this, alright? I — I’ve got some things I — I’ve got some questions I need to ask you. Are you — are you going to talk to me?” Andrade replied, “yeah,” and proceeded to speak with the officer. The interview continued, and Andrade made incriminating statements.

Andrade was subsequently indicted for three counts of rape (OCGA § 16-6-1 (a)) and one count of first-degree burglary (OCGA § 16-7-1 (b)). He filed a motion to suppress the statements he made during both interviews. Following a hearing, the trial court denied his motion to suppress as to the initial interview but granted Andrade’s motion to suppress the second interview. The State appeals, contending that the trial court erred in finding that Andrade invoked his right to remain silent.

Undoubtedly, “an accused may end a custodial interrogation at any time by invoking his constitutional right to remain silent.” Barnes v. State, 287 Ga. 423, 425 (2) (696 SE2d 629) (2010). To do so, however, the defendant “must unambiguously and unequivocally express his desire to invoke that right.” Id. As explained by our Supreme Court:

There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that avoids difficulties of proof and provides guidance to officers on how to proceed in the face of ambiguity. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult, decisions about an accused’s unclear intent and face the consequence of suppression if they guess wrong. Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights might add marginally to Miranda's goal of dispelling the compulsion inherent in custodial interrogation. But as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.

(Citation and punctuation omitted.) Id. at 425-426 (2).

The trial court suppressed Andrade’s incriminating statements after finding that Andrade “indicat[ed] on the video that he did not wish to speak with” the officer. According to the trial court, the officer “stated to [Andrade] in negative question form, words to the effect of — you don’t want to talk?,” to which Andrade “appeared to respond with voice and head gestures in the negative.” The video recording, however, belies these findings, which are thus clearly erroneous. The officer did not say anything resembling, “you don’t want to talk?” Instead, he affirmatively asked Andrade whether he would give a statement, and Andrade offered unintelligible responses, until, on further clarification, he explicitly stated that he would speak with the officer.

The officer testified at the suppression hearing that Andrade never invoked his right to remain silent or indicated that he did not wish to talk with police. And Andrade admitted at the hearing that he agreed to speak with the officer. Although he vaguely asserted that at some point during his two interviews, he told the officer that he “wasn’t going to tell him, talk to him,” he offered no testimony establishing when he made this statement, the circumstances surrounding it, or whether it constituted an unambiguous invocation of his right to remain silent.

Simply put, the record reveals nothing that would “lead a reasonable police officer to understand that [Andrade] was exercising his right to remain silent.” Barnes, 287 Ga. at 425 (2). Neither the video nor Andrade’s testimony shows that he unambiguously and unequivocally invoked the right before making his incriminating statements. Instead, he signed a waiver of rights and, when asked whether he would make a statement, gave several unintelligible responses before stating, “yeah.” Thus, Andrade did not unambiguously and unequivocally invoke his right to remain silent. See id. at 426 (2) (“defendant’s statement that he should not talk in the absence of ‘real talk’ was insufficient to trigger the interrogating agent’s duty to cease questioning”); Perez v. State, 283 Ga. 196, 200-201 (657 SE2d 846) (2008) (“If Perez had truly intended to withdraw his waiver and invoke his right to remain silent, he would not have acquiesced in responding to the officer’s further questioning.”). But see State v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005) (trial court properly found that defendant invoked his right to remain silent where defendant “shook his head in the negative when asked if he wanted to talk about the victim’s death and the questioning agent took [defendant’s] response to be a refusal to talk about the incident”).

Because there is no evidence that Andrade unambiguously and unequivocally invoked his right to remain silent, the trial court erred in suppressing his statements to police.

Judgment reversed.

Barnes, P. J., Ellington, P J., Dillard, P J., McFadden, P J., Ray, Branch and McMillian, JJ., concur. Miller, P. J., dissents.

MILLER, Presiding Judge,

dissenting.

This case presents to us with an ambiguous video of Andrade’s interrogation and, thus, this Court is bound to defer to the trial court’s factual determinations if there is any evidence to support them. The question before us is not whether Andrade unequivocally invoked his right to silence but is instead whether the trial court could have found that he had. In reversing the trial court, the majority opinion misapplies our deferential standard of review and exceeds its authority by usurping the role of the factfinder. I therefore respectfully dissent.

We are “a court of review” and lack jurisdiction to decide disputed issues of fact. Likewise, we cannot draw a different inference from the evidence or make a credibility determination contrary to the one made by the trial court. This is true even if we would have made a different, conclusion had the members of this Court been the trial judge.

(Citations omitted.) State v. Ellison, 271 Ga. App. 898, 902 (3) (c) (611 SE2d 129) (2005); see also Ga. Const. of 1983, Art. VI, Sec. V, Par. III. Thus, “[ujnless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement . . . will be upheld on appeal.” (Citation and punctuation omitted.) Butler v. State, 292 Ga. 400, 403 (2) (738 SE2d 74) (2013).

While the majority highlights the need for an “unambiguous” invocation of one’s right to remain silent, that is not the question before us. Faced with an ambiguous record, this Court “cannot second-guess the trial court” but rather must “draw all reasonably permissible inferences from the evidence to support the trial court’s ruling.” See Ellison, supra, 271 Ga. App. at 902-903 (5) (emphasis supplied); see also State v. Mohammed, 304 Ga. App. 230, 231-232 (695 SE2d 721) (2010) (where a video recording is consistent with more than one factual finding, this Court defers to the trial court’s interpretation of the recording). By basing its ruling on its disagreement with the trial court about the content of the video, the majority fails to follow precedent and oversteps its role by replacing the trial court as factfinder.

As conceded by the majority, the poor quality of the audiovisual recording in this case leaves us with an ambiguous record to review. Andrade’s muted responses to the officer’s questions admittedly are difficult to understand in the recording. Although the trial court could have reached a different conclusion about the content of the video, it did not do so, and our review of its interpretation of the video is limited. Nevertheless, the majority essentially makes its own de novo factual finding that “Andrade did not unambiguously and unequivocally invoke his right to remain silent.” Maj. Op. at 231.

Decided June 30, 2017.

Richard L. Perryman III, District Attorney, Rebekah M. Ditto, Jennifer R. Smith, Assistant District Attorneys, for appellant.

John W. Strickland, Jr., for appellee.

That is not the proper role of this Court. This Court rather is tasked with answering a narrow question: viewing the totality of the circumstances in the light most favorable to the challenged ruling, was there any evidence to support the trial court’s finding? See State v. Colvard, 296 Ga. 381, 382 (1) (768 SE2d 473) (2015); Butler, supra, 292 Ga. at 403 (2).

With the proper inquiry identified, the case is simple and the answer is clear: there is some evidence to support the trial court’s finding. Notably, both Andrade and the officer testified during the suppression hearing, and the trial court was able to assess their credibility in reaching its factual findings. See Butler, supra, 292 Ga. at 403 (2). As an appellate court, we do not have the benefit of seeing and hearing these witnesses and, thus, we are bound to accept the trial court’s credibility findings. See id.

Although my esteemed colleagues are no doubt aware of the different roles of the trial and appellate courts, they have conflated those roles in this case. Instead of deferring to the trial court’s factual findings on an ambiguous record, they have impermissibly substituted their own interpretation of the video for that of the trial court. Giving proper deference to the trial court, I would affirm the judgment.

       This Court initially dismissed the State’s appeal as untimely under OCGA § 5-7-1 (a) (5). On review, the Supreme Court of Georgia reversed, holding that the appeal was timely filed under OCGA § 5-7-1 (a) (4), and remanded the case to this Court to consider the merits. State v. Andrade, 298 Ga. 464 (782 SE2d 665) (2016).

       The two decisions primarily relied on by the majority add little to the analysis here, as neither case involved the deference this Court must give to the trial court’s factual findings on a motion to suppress. See Barnes v. State, 287 Ga. 423, 425 (2) (696 SE2d 629) (2010); Perez v. State, 283 Ga. 196, 200-201 (657 SE2d 846) (2008).

       Notwithstanding the majority’s passing suggestion to the contrary, the critical facts in this case are not “indisputably discernible” from the audiovisual recording. See Maj. Op. at 229.


author: Bethel, Judge. McFADDEN, Presiding Judge,

text:
    A17A0044.
    COLUMBUS CONSOLIDATED GOVERNMENT v. WOODY.
    (802 SE2d 717)
   Bethel, Judge.

The Columbus Consolidated Government (“Columbus”) appeals from the denial of its motion for judgment on the pleadings. Columbus asserts that sovereign immunity bars the claims of Franklin Woody because the injuries he sustained while welding a garbage truck belonging to Columbus as part of a prison work detail did not arise from the negligent use of a motor vehicle. We agree and reverse because the statute providing waiver of sovereign immunity is limited in scope and does not allow a plaintiff to bring suit to recover for injuries arising solely out of maintenance of a covered motor vehicle.

“On appeal, we review de novo the trial court’s decision on a motion for judgment on the pleadings, and we construe the complaint in a light most favorable to [Woody], drawing all reasonable inferences in his favor.” Hewell v. Walton County, 292 Ga. App. 510, 510-511 (664 SE2d 875) (2008) (citation and punctuation omitted). So viewed, the pleadings allege that on October 12, 2011, Franklin Woody was working a prisoner work detail. Woody was assigned the task of welding spots on the body of a garbage truck belonging to Columbus. Sparks from the welding ignited Woody’s prison jumpsuit, and he sustained injuries. Woody brought a personal injury action against Columbus. Columbus filed a motion for judgment on the pleadings, arguing that Woody’s claims were barred by the doctrine of sovereign immunity The trial court denied Columbus’ motion, and this appeal followed.

“Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability,” and therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue. Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009), overruled on other grounds by Rivera v. Washington, 298 Ga. 770 (784 SE2d 775) (2016). Sovereign immunity extends to the county and can only be waived by a legislative act of the General Assembly specifically providing for the waiver andits extent. Hewell, 292 Ga. App. at 512; see also Ga. Const. Art. I, Sec. II, Par. IX. Accordingly, “[a] waiver of sovereign immunity must be established by the party seeking to benefit from that waiver.” McCobb v. Clayton County, 309 Ga. App. 217, 218 (1) (a) (710 SE2d 207) (2011) (citation and punctuation omitted).

The sole issue before this Court is whether OCGA §§ 33-24-51 (b) and 36-92-2 waive sovereign immunity for injuries arising from the maintenance work performed by Woody on the garbage truck. In response to Columbus’s motion for judgment on the pleadings, Woody argued, and the trial court found, that OCGA §§ 33-24-51 (b) and 36-92-2 waive Columbus’s sovereign immunity. However, an analysis of the plain language of these statutes as illuminated by their history shows that that determination was incorrect.

Prior to 2005, subsection (a) of OCGA § 33-24-51 provided that political subdivisions of the state, including municipalities, were authorized to procure liability and property damage insurance “arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . .. political subdivision.. Ga. L. 1960, p. 289, § 1; Ga. L. 1985, p. 1054, § 1. Subsection (b) then provided that when a political subdivision purchased “the insurance authorized by subsection (a) . . . its governmental immunity shall be waived to the extent of the amount of insurance so purchased. . . Id. Thus, in Chamlee v. Henry County Bd. of Ed., 239 Ga. App. 183, 188 (2) (521 SE2d 78) (1999), this Court held that subsection (b) “provides for waiver of sovereign immunity to the extent of the amount of liability insurance purchased . . . that arises out of either ownership, maintenance, operation, or use of a motor vehicle.”

Effective in 2005, however, the legislature amended the statute to change fundamentally how the waiver of sovereign immunity worked, and it did so largely by adding a new first sentence to subsection (b) and by adding several related new Code sections, most importantly, OCGA § 36-92-2. As amended, subsections (a) and (b) of OCGA § 33-24-51 provide as follows:

(a) A municipal corporation, a county, or any other political subdivision of this state is authorized in its discretion to secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury to any person or for damage to property of any person, or for both arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the municipal corporation, county, or any other political subdivision of this state under its management, control, or supervision, whether in a governmental undertaking or not, and to pay premiums for the insurance coverage.
(b) The sovereign immunity of local govern ment en tities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived as provided in Code Section 36-92-2. Whenever a municipal corporation, a county, or any other political subdivision of this state shall purchase the insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his or her official duties in an amount greater than the amount of immunity waived as in Code Section 36-92-2, its governmental immunity shall be waived to the extent of the amount of insurance so purchased. . . .

OCGA § 33-24-51 (emphasis supplied). Correspondingly, new Code section 36-92-2 established the degree to which immunity was waived under the new first sentence of OCGA § 33-24-51 (b) for “negligent use of a covered motor vehicle.” OCGA § 36-92-2 (a). And it also provides:

The sovereign immunity of local government entities for a loss arising out of claims for the negligent use of a covered motor vehicle is waived only to the extent and in the manner provided in this chapter and only with respect to actions brought in the courts of this state. . . .

OCGA § 36-92-2 (b). Thus, as the Supreme Court of Georgia has summarized, OCGA § 33-24-51, as amended, “create[s] a two-tier scheme within which local governments are deemed to have waived sovereign immunity” Gates v. Glass, 291 Ga. 350, 352 (729 SE2d 361) (2012).

The first tier . . . requires local entities to waive sovereign immunity — up to certain prescribed limits — for incidents involving motor vehicles regardless of whether they procure automobile liability insurance. The second tier, enacted by OCGA § 33-24-51 (b), and as revised [effective in 2005], provides for the waiver of sovereign immunity to the extent a local entity purchases liability insurance in an amount exceeding the limits prescribed in OCGA § 36-92-2.

Id. at 352-353 (emphasis supplied). The first sentence in OCGA § 33-24-51 (b) and OCGA § 36-92-2 indicate that the first-tier waiver of immunity does not apply to “ownership, maintenance, [or] operation” of a motor vehicle, the terms found in subsection (a) of OCGA § 33-24-51. Consequently, cases interpreting the statute, as it existed prior to 2005, are not relevant to the question before the Court in this case. This case thus presents a question of first impression in Georgia with respect to the amended language of OCGA § 33-24-51 (b) and the language of OCGA § 36-92-2.

In construing this statute, we start and if at all possible end, with the plain language of the statute.

Under our well-established rules of statutory construction . . . we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. We look to the text of the provision in question and its context within the larger legal framework to discern the intent of the legislature in enacting it.

West v. State, 300 Ga. 39, 42 (793 SE2d 57) (2016) (citations and punctuation omitted).

“Statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operationIntegon Indent. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987); OCGA § 1-3-1 (b). “It is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994) (citation and punctuation omitted). In other words, we always must presume that the General Assembly “means what its says and says what it means.” Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011). Thus when the General Assembly adds language to the existing Code section, it follows that the new language has meaning, such that the language clarifies, limits, expands, or changes the meaning of the revised Code section.

In the context of the doctrine of sovereign immunity, “statutes ... providing for a waiver of sovereign immunity[ ] are in derogation of the common law and thus are to be strictly construed against a finding of waiver.” Gish v. Thomas, 302 Ga. App. 854, 860 (2) (691 SE2d 900) (2010); see also Smith v. Chatham County, 264 Ga. App. 566, 568-569 (1) (591 SE2d 388) (2003). “Moreover, the doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed.” Bd. of Regents of the Univ. System of Ga. v. Brooks, 324 Ga. App. 15, 17 (749 SE2d 23) (2013) (citation and punctuation omitted).

The plain language of the amended statute shows that the legislature clearly chose not to use all four terms found in subsection (a) of OCGA § 33-24-51 when it added the new first sentence to subsection (b) of OCGA § 33-24-51, which it easily could have. Instead it chose to limit the scope of the first-tier immunity waiver to “a loss arising out of claims for the negligent use of a covered motor vehicle.” OCGA § 33-24-51 (b). Similarly, the second sentence of subsection (b), which was also amended in 2005 to incorporate the new two-tier structure, shows that the second tier of waiver still refers to “the insurance authorized by subsection (a)” whereas the first sentence of subsection (b) refers only to the “negligent use.” Thus, in two separate ways, when amending OCGA § 33-24-51 to create the new first-tier of waiver, the legislature chose not to refer to all four categories listed in subsection (a). In addition, the legislature twice used the identical “negligent use” language: first in OCGA § 36-92-2 and again in OCGA § 33-24-51 (b).

While we recognize that determining whether an event arises from the “use” of a motor vehicle can depend on the particular circumstances, and a bright-line definition may be elusive, “[t]he question to be answered is whether the injury originated from, had its origin in, grew out of, or flowed from the use of the motor vehicle as a vehicle.” Saylor v. Troup County, 225 Ga. App. 489, 490 (484 SE2d 298) (1997) (citation and punctuation omitted). In this case, it is undisputed from the record that at the time of the welding incident, the garbage truck was immobile and undergoing maintenance. Based on the plain, unambiguous language of the waiver provisions of OCGA §§ 33-24-51 (b) and 36-92-2 (a), we find no basis for construing the term “use” to encompass the maintenance or repair of the garbage truck. If the legislature intended that the term “use” should be construed to include the “ownership, maintenance, and operation” of a covered vehicle when determining the scope of a first-tier waiver of sovereign immunity, it would have included those terms in the language providing for the second-tier waiver just as it had done in the provision of OCGA § 33-24-51 (a). Instead we read subsection (b) as providing a narrower waiver than that contemplated by subsection (a). With that in mind, we must conclude that Columbus’ vehicle was not being “used” as a garbage truck when Woody sustained his injuries.

Accordingly, we hold that waiver of sovereign immunity as contemplated by OCGA §§ 33-24-51 (b) and 36-92-2 is limited to those claims arising out of the negligent use of a covered motor vehicle as a vehicle. Thus for the foregoing reasons, we must conclude that the sovereign immunity of Columbus is not waived with respect to Woody’s claims as alleged. We therefore reverse.

Judgment reversed.

Branch, J., concurs. McFadden, P. J., concurs fully and specially.

McFADDEN, Presiding Judge,

concurring fully and specially.

I concur fully in the majority opinion. Because the pleadings do not indicate the existence of a policy, the only waiver of sovereign immunity that could possibly apply would be the automatic waiver described by the majority and our Supreme Court as a “first-tier” waiver. See Gates v. Glass, 291 Ga. 350, 352-353 (729 SE2d 361) (2012). The majority holds, and I reluctantly agree, that a first-tier waiver applies only to losses “arising out of claims for the negligent use of a covered motor vehicle [up to the limits] provided in Code Section 36-92-2.” OCGA § 33-24-51 (b) (emphasis supplied). This, the majority holds and I reluctantly agree, is in contrast to the broader scope of a second-tier waiver, which is effected by the purchase of insurance. A second-tier waiver extends to losses “arising by reason of ownership, maintenance, operation, or use of any motor vehicle.” See OCGA § 33-24-51 (a), (b).

Woody’s claim arose out of the maintenance of a motor vehicle — not the use of a motor vehicle. So his claim is not within the scope of the automatic “first-tier” waiver. And since he did not allege the existence of an insurance policy which would have effected a second-tier waiver, Columbus was entitled to judgment on the pleadings.

I write separately to explain my reluctance. I concur reluctantly for two reasons. First, it is by no means clear that the legislature intended that the scope of a first-tier waiver differ from the scope of a second-tier waiver. Second, as detailed below, when a government entity purchases insurance in an amount equal to or less than the amount of the automatic, first-tier waiver, our analysis would lead to a result the legislature is unlikely to have intended.

As to my first concern, a close reading of OCGA § 36-92-2 suggests that, contrary to our holding, the scope of first- and second-tier waivers is the same. Reading together subsections (a), (b), and (d) (3) of that Code section leads one to the conclusion that the automatic, first-tier waiver and the second-tier waiver effected by the “purchase [ of] commercial liability insurance in an amount in excess of the waiver set forth in [that] Code section,” OCGA § 36-92-2 (d) (3), are both of immunity from liability “for a loss arising out of claims for the negligent use of a covered motor vehicle[.]” OCGA § 36-92-2 (a), (b). On the other hand I agree that a comparison of subsections (a) and (b)ofOCGA § 33-24-51 at least suggests different scopes of waiver for the two different, tiers. My doubts about which interpretation we must adopt are dispelled by the rule that “statutes that provide for a waiver of sovereign immunity . . . are in derogation of the common law, [and so] are to be strictly construed against a finding of waiver.” Raw Properties v. Lawson, 335 Ga. App. 802, 806 (1) (783 SE2d 161) (2016) (citations and punctuation omitted; emphasis in original). But I remain in doubt whether that is the interpretation intended by the General Assembly.

My second concern is that our analysis appears to lead to an anomaly that the General Assembly surely did not intend. That anomaly would arise when a government entity purchases insurance coverage for an amount equal to or less than the amount of the first-tier waiver, the automatic waiver of sovereign immunity established by OCGA § 36-92-2 (a).

OCGA § 33-24-51 (a) authorizes certain government entities to purchase insurance coverage for certain claims “arising by reason of ownership, maintenance, operation, or use of any motor vehicle[.]” OCGA § 33-24-51 (a) (emphasis supplied). As mentioned above, subsection (b) of that Code section sets forth two express waivers of sovereign immunity: the automatic “first-tier” waiver and the “second-tier” waiver, which applies when the government entity has purchased insurance as authorized by subsection (a) “in an amount greater than the amount of immunity waived as in Code Section 36-92-2[.]” OCGA § 33-24-51 (b) (emphasis supplied). Our Supreme Court has interpreted this second tier to “provide[ ] for the waiver of sovereign immunity to the extent a local [government] entity purchases liability insurance in an amount exceeding the limits prescribed in OCGA § 36-92-2.” Gates, supra, 291 Ga. at 352-353.

My concern with the application of this Code section, as it has been interpreted in Gates, supra, is the circumstance where a government entity purchases insurance to cover ownership, maintenance, or operation of a vehicle, as authorized by subsection (a), but in an amount equal to or less than the amount of the first-tier waiver of sovereign immunity, the automatic waiver established by OCGA § 36-92-2 (a). If the claim did not arise from negligent use, the anomaly would arise. Sovereign immunity would not be waived. First-tier immunity would not apply for the reasons set forth in the majority opinion. Second-tier immunity would not apply because the amount of insurance purchased by the government entity did not exceed the limits prescribed in OCGA § 36-92-2 (given the construction of OCGA § 33-24-51 (b) in Gates, supra).

Compare, for example, the following scenarios. “Plaintiff A” asserts a claim against “County A” for damages of $400,000 arising from the negligent maintenance of a county vehicle. Pursuant to OCGA § 33-24-51 (a), “County A” has purchased insurance coverage for claims arising from ownership, maintenance, operation, or use of a motor vehicle. But the limit of that coverage is $500,000, which does not exceed the limits prescribed in OCGA § 36-92-2 (a). So although “County A” has insurance to cover the $400,000 negligent maintenance claim brought by “Plaintiff A,” “County A” has not waived its sovereign immunity as to that claim. “Plaintiff A” cannot proceed with his claim.

“Plaintiff B” also asserts a claim for damages of $400,000 arising from the negligent maintenance of a county vehicle, but his claim is against “County B.” And, pursuant to OCGA § 33-24-51 (a), “County B” has purchased insurance coverage for claims arising from ownership, maintenance, operation, or use of a motor vehicle. But unlike the insurance purchased by “County A,” the insurance purchased by “County B” has a limit of $500,001 and therefore exceeds the prescribed limits of OCGA § 36-92-2 (a) (3) by one dollar. “County B” has waived its sovereign immunity to the negligent maintenance claim under the “second-tier” waiver of OCGA § 33-24-51 (b) for claims up to $500,001. So “Plaintiff B” can proceed against “County B” on his $400,000 claim for negligent maintenance.

I see no reason for this disparate treatment of “Plaintiff A” and “Plaintiff B.” Yet the language of OCGA § 33-24-51, as interpreted by our Supreme Court in Gates, supra, seems to require it.

There is an alternative interpretation of OCGA § 33-24-51 that would avoid this result. As quoted above, subsection (b) of that Code section provides for a waiver of sovereign immunity where the governmental entity has purchased insurance pursuant to OCGA § 33-24-51 (a) “in an amount greater than the amount of immunity waived as in [OCGA §] 36-92-2[.]” OCGA § 33-24-51 03) (emphasis supplied). No immunity is waived for a claim of negligent maintenance (or ownership, or operation) under OCGA § 36-92-2 because that Code section concerns the waiver of immunity only of claims for negligent use. OCGA § 36-92-2 (a). Because no immunity is waived for such claims under OCGA § 36-92-2, insuring against them for any amount greater than zero constitutes insuring them “in an amount greater than the amount of immunity waived” in that statute. And because OCGA § 36-92-2 provides no waiver of sovereign immunity for claims other than negligent use, a government entity’s sovereign immunity to a claim for negligent maintenance (or ownership, or operation) arguably is waived under the plain language of OCGA § 33-24-51 (b) to the extent that the entity has purchased insurance to cover such a claim — whether or not the amount of that insurance exceeds the dollar amounts prescribed in OCGA § 36-92-2.

Decided June 30, 2017.

Page, Scrantom, Sprouse, Tucker & Ford, James C. Clark, Jr., Alan G. Snipes, LaRae D. Moore, Tyler C. Cashbaugh; Clifton C. Fay, Lucy T. Sheftall, for appellant.

Philips Branch & Hodges, Stephen J. Hodges, Brian M. Worstell, for appellee.

But that is not what the Gates decision appears to hold. And statutes relating to sovereign immunity “are to be strictly construed against a finding of waiver.” Raw Properties, supra, 335 Ga. App. at 806 (1) (citation and punctuation omitted; emphasis in original).

I respectfully suggest that the General Assembly reconsider these provisions.

       The Georgia Department of Corrections was originally named as a co-defendant in this suit; however, it was later dismissed without prejudice by order of the trial court.

       We note that Woody, while working as a prisoner, clearly stands in the place of an involuntary servant under the provisions of OCGA § 33-24-51 (b). See Chamlee v. Henry County Bd. of Ed., 239 Ga. App. 183, 189-190 (521 SE2d 78) (1999) (Eldridge, J., concurring specially).

       In so concluding, this Court in Chamlee noted that although some Supreme Court of Georgia cases had stated that under OCGA § 33-24-51, the government entity waives immunity arising from the use of a motor vehicle, in none of those cases did the Supreme Court actually address any distinction between the categories of ownership, operation, maintenance, or use. Chamlee, 239 Ga.App. at 186-187.

       See, e.g., Williams v. Whitfield County, 289 Ga. App. 301, 303 (656 SE2d 584) (2008); Chamlee, 239 Ga. App. at 188 (2); see also Blumsack v. Bartow County, 223 Ga. App. 392, 393-396 (1) (477 SE2d 642) (1996). The plain language of OCGA § 33-24-51 (b) in effect when the events giving rise to Cham lee and Williams occurred provided for waiver simply because the government had purchased insurance providing liability coverage. However, as we discuss more fully in the body of this opinion, the statute authorizing these holdings has been narrowed by the General Assembly, making the prior interpretation of OCGA § 33-24-51 (b) we articulated in Chamlee and Williams no longer applicable and contrary to the explicit text of the current statute.

        Gish, 302 Ga. App. at 861 (2) (citation and punctuation omitted).


author: McMlLLIAN, Judge. McFADDEN, Presiding Judge,

text:
    A17A0060.
    GAY v. THE STATE.
    (803 SE2d 113)
   McMlLLIAN, Judge.

During the plea colloquy prior to the entry of this non-negotiated plea, the trial court misstated, in defendant Jerry L. Gay, Jr.’s favor, the range of possible sentence for armed robbery, leading trial counsel to speculate later with his client that the trial court may have been indicating that he was not inclined to impose life imprisonment. Although the trial court referred to the correct sentencing range before pronouncing judgment, the trial court should have permitted Gay to withdraw his guilty plea under the circumstances of this case. Accordingly, we now reverse the trial court’s denial of Gay’s motion to withdraw his guilty plea.

The standard for reviewing a denial of a motion to withdraw a guilty plea is well established. “After sentencing, the decision on a motion to withdraw a guilty plea is within the trial court’s discretion and withdrawal of the plea is allowed only when necessary to correct a manifest injustice.” (Citations and punctuation omitted.) Allen v. State, 333 Ga. App. 853, 855 (2) (777 SE2d 699) (2015).

The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.

Id. Once a guilty plea is challenged, the State generally bears the burden of showing affirmatively from the record that the defendant entered his plea knowingly, intelligently, and voluntarily and with an understanding of the nature of the charges and the consequences of entering the plea. Maples v. State, 293 Ga.App. 232, 234 (2) (666 SE2d 609) (2008); Zellmer v. State, 273 Ga.App. 609, 611 (2) (615 SE2d 654) (2005).

Gay was initially charged with malice murder, armed robbery, two counts of possession of a firearm during the commission of a felony, and possession of a firearm by a first offender probationer. After plea negotiations, Gay agreed to plea to voluntary manslaughter and armed robbery with the remainder of the charges to be dismissed. The State and Gay, however, were not able to agree to a sentence recommendation to present to the trial court. At the guilty plea hearing, it is undisputed that the trial court asked Gay with respect to the armed robbery charge: “Do you understand that carries a penalty range of ten to 20 years in prison?” to which Gay responded in the affirmative.

After the guilty plea hearing but before sentencing, trial counsel realized that the trial court had omitted the potential of a life sentence in describing the sentencing range for armed robbery Counsel also testified that he told Gay that the omission of the life sentence may indicate that the trial court was not going to impose a life sentence. To counsel’s credit, he brought the misstatement to the trial court’s attention prior to the sentencing hearing about a month later. The trial court then began the sentencing hearing by addressing Gay as follows:

You’re in court today for sentencing in your case. I have reviewed a presentence investigation report in your case, and I’ve reviewed material that your attorney has sent to me on your behalf. One thing I do want to do before we get started this morning is to make sure I properly advised you of the sentencing ranges in your cases when we took your plea of guilty. I believe I informed you that the voluntary manslaughter carried a penalty term of not more than twenty years in state prison and armed robbery carries a minimum mandatory of ten years and not more than twenty years or life. I just want to make sure I properly advised you of the sentencing range for both offenses.

The trial court then proceeded with the hearing, and after testimony from several witnesses, sentenced Gay to life imprisonment for the armed robbery and twenty years for the voluntary manslaughter. Two days later, Gay, through trial counsel, filed a motion to withdraw the guilty plea, which after amendment, was denied.

“As a matter of constitutional due process, before a defendant pleads guilty, the trial court must advise him of the ‘direct’ consequences of entering the plea[.]” Smith v. State, 287 Ga. 391, 394 (2) (a) (697 SE2d 177) (2010). “Direct consequences may be described as those within the sentencing authority of the trial court, as opposed to the many other consequences to a defendant that may result from a criminal conviction.” Id. Clearly, the sentencing range is within the direct authority of the trial court and thus must be considered a direct consequence of entering the plea.

However, our Supreme Court has held that the failure to advise a defendant of the sentencing range does not invalidate the guilty plea “when [the defendant] makes no claim that he was disadvantaged by the omission or even that he was in fact unaware of the possible sentence which could be imposed.” (Citation and punctuation omitted.) Adams v. State, 285 Ga. 744, 746-47 (3) (683 SE2d 586) (2009). See also Hill v. Hopper, 233 Ga. 633, 634 (212 SE2d 810) (1975). The Supreme Court has further held that withdrawal of the guilty plea was not required to correct a manifest injustice when the trial court omitted telling the defendant what the mandatory minimum sentence was, but counsel testified that he correctly advised the defendant about the length of her sentence. Arnold v. State, 292 Ga. 95, 97 (2) (734 SE2d 382) (2012).

But none of these cases are controlling here. Akey factor in these cases is that the trial court’s error, if any, was the omission of the sentencing range, instead of an affirmative misrepresentation, which is what happened here. See Hill, 233 Ga. at 634 (“nor has he alleged that the possible sentence was affirmatively misrepresented”). Also, in each case, our Supreme Court noted that the sentence was negotiated, and the defendants were sentenced according to the plea bargain, notwithstanding the failure of the trial court to describe the sentencing range on the record. Adams, 285 Ga. at 746 (3) (“Appellant entered a negotiated guilty plea and received the sentence for which he bargained.”); Hill, 233 Ga. at 634 (“[Hill] has at no time claimed that the state made and breached any sort of plea bargain with him[.]”); see Arnold, 292 Ga. at 95 (“[p]ursuant to a negotiated plea”).

In contrast, Gay’s sentence was not negotiated, nor is this an “omission” or failure to inform case. Instead, the trial court misstated Gay’s sentencing range for armed robbery, which led trial counsel to speculate and raise the hope in Gay that the trial court would not impose life imprisonment at sentencing. Although the trial court then referred to the correct sentencing range at the sentencing hearing, it is clear from the face of the transcript that the trial court did not acknowledge the error and instead appears to compound the misstatement by asking Gay to confirm that the trial court stated the correct sentencing range at the guilty plea hearing. Cf. Pike v. State, 245 Ga. App. 518, 519-20 (1) (538 SE2d 172) (2000) (prosecutor drew defendant’s attention to misstatements made about sentencing range, stated the correct ranges, and emphasized “I’m correcting it at this time so that you will know.”) (punctuation omitted). And even though it is true, as the dissent points out, that Gay knew from a previous hearing that he could withdraw his plea at any time before he was sentenced, the trial court did not reiterate that right to Gay at the time the court “corrected” its earlier mistake. Further, although the dissent and the trial court in its order denying the motion both specifically rely on the testimony that Gay had been advised accurately by his counsel about the sentencing range, the issue in this case is not Gay’s knowledge of the sentencing range. Instead, the misstatement gave Gay the false impression that the trial court, who had the discretion to sentence within that range, may have been inclined to sentence him to twenty years instead of life.

For these reasons, Gay should have been allowed to withdraw his guilty plea to correct a manifest injustice, and the judgment of the trial court must be reversed and the case remanded for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Barnes, P. J., Miller, P. J., Branch, Mercier, Reese, and Bethel, JJ., concur. Doyle, C. J., and McFadden, P. J., dissent.

McFADDEN, Presiding Judge,

dissenting.

I respectfully dissent from the majority opinion reversing the trial court’s denial of Jerry Gay’s motion to withdraw his guilty plea. The record shows that despite the trial court’s misstatement regarding the sentencing range for armed robbery, Gay actually knew the range of possible sentences before, during, and after the entry of his guilty plea; that prior to sentencing, Gay’s attorney informed the court of its mistake and suggested that the court correct it on the record; that the trial judge then corrected the mistake before the start of the sentencing hearing, and Gay expressly acknowledged that he understood the corrected sentencing range; and that Gay then, despite having been informed of his right to withdraw his guilty plea before sentencing, did not withdraw his plea and instead proceeded with the sentencing hearing. Under these circumstances, the trial court did not abuse its discretion in finding that Gay entered his plea with full knowledge of the possible consequences, including a life sentence, and yet still chose not to withdraw his plea prior to sentencing. Accordingly, there was no manifest injustice mandating that Gay be allowed to withdraw his knowing and voluntary plea after sentence was imposed.

A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion. When the validity of a guilty plea is challenged, the [sjtate bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily The [sjtate must show that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea. After a defendant’s sentence has been pronounced, his guilty plea may be withdrawn only to correct a manifest injustice. The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.

Jones v. State, 325 Ga. App. 845, 846 (2) (755 SE2d 238) (2014) (citation and punctuation omitted).

In this case, the majority finds that the trial court’s failure to inform Gay of the possibility of a life sentence at the plea hearing constitutes a manifest injustice mandating that he be allowed to withdraw his plea. Indeed, if the court’s mistake had in fact misled Gay and caused him to enter his guilty plea without actual knowledge of life as a possible consequence, it very well might have constituted a manifest injustice. But that is not what happened in this case. On the contrary, the record plainly shows that the trial court’s mistake had no impact on Gay’s entry of his guilty plea because in spite of the court’s omission, which was corrected on the record before sentencing, Gay was fully cognizant of the fact that a life sentence was a possible consequence of his guilty plea to armed robbery.

At the hearing on the motion to withdraw the guilty plea, Gay’s plea counsel testified that he had met with Gay at least 2 5 times prior to the plea hearing and that they had discussed the possible outcomes of his case many times, including the possibility of a life sentence for armed robbery. According to counsel, Gay “absolutely” knew before his plea that life was a potential sentence for armed robbery Gay himself testified that he knew about the possible life sentence, confirming that prior to the plea hearing counsel had informed him of the possibility of a life sentence. Moreover, at the plea hearing, Gay submitted a signed waiver of rights form acknowledging that his attorney had discussed the case with him, that he understood the charges, and that he understood the maximum penalty the court could impose. Thus, the evidence in the record clearly supports a finding that Gay knew a life sentence was a possible consequence before and during the entry of his guilty plea.

Furthermore, counsel testified that after the plea hearing and before the sentencing hearing, which was held over a month after the plea, he and Gay discussed the trial court’s failure to mention the possibility of a life sentence at the plea hearing. Counsel said that during those discussions he had speculated that the court’s misstatement might be an indication that it was not going to impose a life sentence but that there was never a promise to cap the sentence at 20 years. Gay contradicted counsel’s testimony, denying that after the plea hearing they had discussed the court’s failure to mention the possibility of a life sentence. Given such conflicting testimony, the trial court was authorized to believe counsel’s testimony over Gay’s self-serving account. See, e.g., Trapp v. State, 309 Ga. App. 436, 438 (1) (710 SE2d 637) (2011) (Because credibility determinations are for the factfinder to make, “the trial court was authorized to disbelieve [the defendant’s] self-serving testimony and to find that he knowingly, freely, and voluntarily entered the plea.”). Thus, there is evidence supporting a finding that even after the trial court’s misstatement at the plea hearing and before sentencing, Gay still knew that he faced a possible life sentence.

In addition to the above-recited evidence of Gay’s knowledge of a possible life sentence, the record also shows that prior to the start of the sentencing hearing held weeks after the plea hearing, Gay’s attorney actually brought to the court’s attention its earlier misstatement at the plea hearing and suggested that the court needed to correct the omission of a possible life sentence on the record. The trial court did just that before starting the sentencing hearing, correcting the mistake on the record by informing Gay that the armed robbery charge carried a possible life sentence. Gay then acknowledged that he understood the sentencing range. Indeed, Gay later confirmed at his plea withdrawal hearing that the trial court, at the sentencing hearing, had corrected its previous error by stating that life was a possible sentence.

The majority discounts the trial court’s correction of its mistake, finding that the correction compounded the mistake by asking Gay, before the start of the sentencing hearing, to confirm that the trial court had stated the correct sentencing range at the guilty plea hearing. But this finding elevates semantics over the substance of the trial court’s clear statement to Gay that life was a possible sentence for armed robbery. Contrary to the majority’s finding, this court “do[es] not find error based on mere semantics.” Rodriguez v. State, 280 Ga. App. 423, 424 (634 SE2d 182) (2006) (affirming denial of motion to withdraw guilty plea where plea form incorrectly stated maximum possible sentence and minimum sentence not properly described to defendant at plea hearing as a mandatory minimum).

After that correction informing Gay of a possible life sentence, Gay did not seek to withdraw his guilty plea, which he could have done as a matter of right before sentence was imposed. See OCGA § 17-7-93 (b). Indeed, at the earlier plea hearing, the court had expressly informed Gay of his absolute right to withdraw his guilty plea before sentence was pronounced, and Gay had stated that he understood his right to withdraw his plea before sentencing. Nevertheless, before the start of the sentencing hearing, after having clearly been informed by the court of the possibility of a life sentence for armed robbery, Gay did not attempt to withdraw his guilty plea and instead opted to proceed with the sentencing hearing. Gay then fully participated in the sentencing hearing, including the presentation of witnesses on his behalf and his own statement. Thereafter, the court announced the sentences, including the life sentence that Gay knew he could receive for the armed robbery.

Given the evidence in the record, it is clear that Gay was fully aware of the fact that he faced a possible life sentence for armed robbery before, during, and after entry of his guilty plea. It is clear that he was informed of his right to withdraw his plea at any time before sentence was imposed. It is clear that he understood the trial court’s correction of the mistake made at the plea hearing, acknowledging that he knew he faced a life sentence before the sentencing hearing. It is clear that despite that knowledge he still chose not to withdraw his guilty plea and instead to proceed with the sentencing hearing. And it is clear that he only sought to withdraw his plea after the life sentence, which he had known was a possible consequence of his plea, was in fact imposed.

Under these circumstances, the instant case is similar to Pike v. State, 245 Ga. App. 518 (538 SE2d 172) (2000). In Pike, the prosecutor misstated some of the possible maximum punishments at the defendant’s guilty plea hearing but corrected those mistakes several weeks later at the sentencing hearing. Id. at 519-520 (1). The defendant made no objection and did not seek to withdraw his plea after the corrections, and instead called witnesses and testified at the sentencing hearing, after which the trial court imposed the maximum sentences on each count. Id. at 520 (1). On appeal, this court affirmed the trial court’s denial of the defendant’s motion to withdraw his guilty plea, rejecting the argument that his plea was not knowing and voluntary because the prosecutor had misstated the maximum sentences at the guilty plea hearing. In so ruling, this court concluded:

The record shows that [the defendant] was aware of the possible severe consequences of his plea during the plea hearing, even if he was not aware of the exact maximum sentence. Given this fact, in addition to [his] plea petition indicating his knowledge of the maximum possible sentence, as well as the fact that [he] continued with his sentencing hearing after being made fully aware of the exact possible consequences of pleading guilty, we cannot say that a manifest injustice exists in this case warranting withdrawal of his plea.

Id. at 521 (1) (emphasis omitted).

Likewise, in the instant case, the court’s misstatement about the sentencing range at the plea hearing does not constitute a manifest injustice requiring that Gay be allowed to withdraw his guilty plea because the record establishes that Gay actually knew before and after his plea, and prior to sentencing, that he faced a possible life sentence. See Arnold v. State, 292 Ga. 95, 97 (2) (734 SE2d 382) (2012) (where counsel testified that he correctly advised defendant concerning the length of her sentence, defendant “has not demonstrated she should be permitted to withdraw her plea to correct a manifest injustice”); Wood v. State, 190 Ga. App. 179, 181 (2) (378 SE2d 520) (1989) (any error in court’s failure to fully inform defendant of sentencing possibilities was harmless because counsel satisfactorily explained consequences of plea). Because the trial court did not abuse its discretion in denying Gay’s motion to withdraw his guilty plea, that ruling should be affirmed.

Decided June 30, 2017.

Wade N. Krueger, for appellant.

J. David Miller, District Attorney, Jessica W. Clark, Assistant District Attorney, for appellee.

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

       Gay testified that he did not recall counsel speaking to him about the trial court’s misstatement. However, the trial court in denying the motion to withdraw the guilty plea credited counsel’s testimony that he had extensively discussed the correct sentencing range with Gay.